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

No. 17-1705

In the Supreme Court of the Anited States

PDR NETWORK, LLC, ET AL., PETITIONERS

v.

CARLTON & HARRIS CHIROPRACTIC, INC.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE IN SUPPORT OF RESPONDENT

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

JOSEPH H. HUNT

Assistant Attorney General

MALCOLM L. STEWART

Deputy Solicitor General

RACHEL P. KOVNER

Assistant to the Solicitor

THOMAS M. JOHNSON, JR. General

General Counsel Roe > ae

Jacos M. Lewis CHAEL 8S. RAAB

Associate General Counsel LINDSEY POWELL

Scorr M. NOVECK Attorneys

Counsel Department of Justice

Federal Communications Ww C. 20530-0001

C weer s - ese

Washington, D.C. 20554 (202) 514-2217

QUESTION PRESENTED

Whether the Administrative Orders Review Act

(Hobbs Act), ch. 1189, 64 Stat. 1129, required the dis-

trict court in this case to accept the FCC’s legal inter-

pretation of the Telephone Consumer Protection Act of

1991, Pub. L. No. 102-243, 105 Stat. 2394.

(D

TABLE OF CONTENTS

Page

Interest of the United States. 1

Statutory provisions involved sutavesimmnenenasemcnsnans 2

Statement 2

Summary of argument

Argument:

I. The Hobbs Act barred petitioners from collaterally

attacking the validity of the 2006 FCC order in

civil litigation outside the Hobbs Act’s channels ........ 11

A. The Hobbs Act provides the exclusive channel

for obtaining judicial review of covered agency

orders il

B. Petitioners’ contrary arguments lack merit......... 19

1. Petitioners’ arguments lack a basis in the

text 19

Hobbs Act 2A

Saeis mente 30

not support petitioners’ approach...................31

Il. Petitioners’ argument that the 2006 FCC order

was not reviewable under the Hobbs Act is not

properly before this Court, and lacks merit in any

event

Appendix — Statutory provisions

TABLE OF AUTHORITIES

|

Cases:

B. F. Goodrich Co. v. Northwest Indus., Inc.,

42A F 2d 1349 (3d Cir.), cert. denied,

400 U.S. 822 (1970) 17

(111)

IV

Cases—Continued: Page

Biggerstaff v. FCC, 511 F.3d 178 (D.C. Cir. 2007) ...............5

Bowen v. Michigan Academy of Family Physicians,

476 U.S. 667 (1986) 31

Bowles v. Willingham, 321 U.S. 508 (1944) 25

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

606 F.3d 443 (7th Cir. 2010), cert. denied,

562 U.S. 1138 (2011) 3, 13

Calderon v. Ashmus, 523 U.S. 740 (1998) 20

Central Texas Tel. Coop., Inc. v. FCC,

402 F.3d 205 (D.C. Cir. 2005) 34

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

Inc., 467 U.S. 837 (1984) 6

City of Peoria v. General Elec. Cablevision Corp.,

690 F 2d 116 (7th Cir. 1982) 13

Daniels v. Union Pac. R_R., 530 F 3d 936

(D.C. Cir. 2008) 13

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

(2013) 28

Environmental Def. v. Duke Energy Corp.,

549 U.S. 561 (2007) 28

FCC vy. ITT World Comme'ns, Inc., 466 US. 468

(1984) 8, 16

Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380

(1947) 29, 32

Functional Music, Inc. v. FCC, 274 F 2d 543

(D.C. Cir. 1958), cert. denied, 361 U.S. 813 (1959) ....... ... 30

Jennings v. Rodriguez, 138 8. Ct. 830 (2018) 31

Jones v. Flowers, 547 U.S. 220 (2006) 32

Lambert Run Coal Co. v. Baltimore & Ohio R.R.,

258 U.S. 377 (1922) 18

Leyse v. Clear Channel Broad., Inc.,

545 Fed. Appx. 444 (6th Cir. 2013),

cert. denied, 135 S. Ct. 57 (2014) 13, 19

Cases—Continued: Page

Mais v. Gulf Coast Collection Bureau, Inc.,

768 F.3d 1110 (11th Cir. 2014) 12

Mims v. Arrow Fin. Servs., 565 US. 368 (2012)..................3

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

cert. denied, 572 U.S. 1028 (2014) 13

Natural Res. Def. Council v. Nuclear

Comm'n, 666 F 2d 595 (D.C. Cir. 1981) 28

Norton v. Southern Utah Wilderness Alliance,

5A2 U.S. 55 (2004) 25

Port of Boston Marine Terminal Ass'n v.

Rederiaktiebolaget T: danti

400 U.S. 62 (1970) passim

Railway Mail Ass'n v. Corsi, 326 U.S. 88 (1945) ...............

Russell Motor Car Co. v. United States,

261 U.S. 514 (1923)

SBC Inc. v. FCC, 414 F 3d 486 (3d Cir. 2005)

Sorenson Comme’ns, Inc. v. FCC, 567 F 3d 1215

(10th Cir. 2009)

Stokeling v. United States, 139 S. Ct. 544 (2019) ...............

Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994) .....

US West Commce’ns, Inc. v. Hamilton, 224 ¥ 3d 1049

(9th Cir. 2000)

United States v. Any & All Radio Station Transmis-

sion Equip., 207 ¥F 3d 458 (8th Cir. 2000),

cert. denied, 531 U.S. 1071 (2001) 13

United States v. Dunifer, 219 F 3d 1004

(9th Cir. 2000) 13

United States v. International Minerals & Chem.

Corp., 402 U.S. 558 (1971) 29, 32

United States v. Jones, 565 US. 400 (2012) 33

United States v. Ruzicka, 329 U.S. 287 (1946) ...............-.... 32

United States v. Stevens, 559 U.S. 460 (2010) .................... 20

=ak £8 8

x

VI

Cases—Continued: Page

United States v. Szabo, 760 F 3d 997 (9th Cir. 2014)......... 26

Venner v. Michigan Cent. R.R., 271 U.S. 127

(1926) 9, 17, 21, 23, 30

WWHT, Inc. v. FCC, 656 F 2d 807 (D.C. Cir. 1981) ..........28

Water Transp. Ass'n v. ICC, 819 F 2d 1189

(D.C. Cir. 1987) 26

Woods v. Hills, 334 U.S. 210 (1948) 8,14

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

(1944) passim

Constitution, statutes, and regulations:

U.S. Const. Art. II 13, 25

Act of June 18, 1910, ch. 309, 36 Stat. 539-540..................... 17

Act of Oct. 22, 1913, ch. 22, 38 Stat. 208 17

39 Stat 219-220 17

39 Stat 23

Administrative Orders Review Act,

ch. 1189, 64 Stat. 1129. 1

28 U.S.C. 2342 passim, la

U.S.C. 2342(1) 2, 11, 33, la

28 U.S.C. 2342(2){7) 2, la

28 U.S.C. 2342(3) 34, la

28 U.S.C. 2342(5) 34, la

U.S.C. 2344 2, 18, 2a

28 U.S.C. 2348 2, 3a

28 U.S.C. 2349 21,22

28 U.S.C. Z34W%(a) 21, 22, 3a

Administrative Procedure Act, 5 U.S.C. 701 et seq............ 10

5 US.C. 708 10, 2A, 25, 26, 28, 4a

Vil

Statutes and regulations—Continued: Page

Communications Act of 1934 ch. 652, 48 Stat. 1064

(47 U.S.C. 151 et seq.):

§ 402(a), 48 Stat. 1093 17

47 U.S.C. 402(a) 2, 11, 22, 33, lla

47 U.S.C. 402(b) 2

47 U.S.C. 405 26

47 U S.C. 501-568 3

Emergency Price Control Act of 1942, ch. 26,

56 Stat. 23 4

§ 208(a), 56 Stat. 31 13

§ 204, 56 Stat. 31-33 13

§ 204(d), 56 Stat. 33 8,13

Telephone Consumer Protection Act of 1991,

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

47 U.S.C. 221aX(5) 3, 5, 4a

47 U.S.C. 227(b(1(C) 3, 5a

47 U.S.C. 227(b)2) (2012 & Supp. V 2017) ............... 3, 6a

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

47 US.C. 2271(eX5) 3

8 U.S.C. 1252(a)(1) 2

28 U.S.C. 46 (1984) 17, 22

28 U.S.C. 1507 29

28 U.S.C. 2112(aX3) 2

33 U.S.C. 1369(b)(2) 23

42 US.C. 5BAI(f) 2

44 USC. 1507 29

50 U.S.C. 167h(b) 2

47 C.F.R.:

Section 1.42% j) 26

Section 1.429()(1) 26

Vill

Miscellaneous: Page

Samuel A. Bleicher, Economic and Technical

Feasibility in Clean Air Act Enforcement Against

Stationary Sources, 89 Harv. L.. Rev. 316 (1975) ............ 25

3 Bouvier’s Law Dictionary and Concise

Brcyolopedia (Bd edd. 1914) ................c0c-ceceeeeeneeneeeeeeennnenes 12

FCC:

Public Notice: Petitions for Reconsideration

and Clarification of Action in Rulemaking

Proceeding (Sept. 8, 2003), https-//does_fec.

gov. = 5

Rules and Regulations Implementing the

Telephone Consumer Protection Act of 199/,

In re:

17 FCC Red 17,459 (2002) rameneesnttinmnes 4

18 FCC Red 14,014 (2008) 4

21 FCC Red 3787 (2006) 5

68 Fed. Reg. 53,740 (Sept. 12, 2008) 5

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

Felix Frankfurter, Some Reflections on the Reading

of Statutes, 47 Colum. L. Rev. 527 (1947). 14

The Oaford English Dictionary (2d ed. 1989):

Vol. 4 12

Vol. 9 12

U.S. Dep’t of Justice, Attorney General's Manual on

the Administrative Procedure Act (1947).................. 25, 26

Paul R. Verkuil, Congressional Limitations on

Judicial Review of Rules, 57 Tulane L. Rev. 733

(1983) sseenseeee

Webster's New ~Jernational Dictionary of the

English Language (2d ed. 1968) 8, 11, 12

16 Charles Alan Wright et al., Federal Practice and

Procedure (3d ed. 2012 & Supp. 2018) 27

In the Supreme Court of the United States

No. 17-1705

PDR NETWORK, LLC, ET AL., PETITIONERS

v.

CARLTON & HARRIS CHIROPRACTIC, INC.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

POR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE IN SUPPORT OF RESPONDENT

INTEREST OF THE UNITED STATES

The Administrative Orders Review Act (Hobbs Act),

ch. 1189, 64 Stat. 1129, vests courts of appeals with “ex-

clusive jurisdiction * * * to determine the validity” of

certain federal agency actions. 28 U.S.C. 2342. This

case presents the question whether a litigant in a pri-

vate district-court lawsuit may collaterally attack the

validity of a Federal Communications Commission (FCC

or Commission) order that could have been challenged

under the Hobbs Act when it was issued. Such collat-

eral attacks would undermine the interests of the

United States and regulated parties in conclusively de-

termining the validity of covered agency actions. The

United States therefore has a substantial interest in the

question presented.

(1)

2

STATUTORY PROVISIONS INVOLVED

The relevant statutes are reprinted in an appendix to

this brief. App., infra, la-1la.

STATEMENT

1. The Hobbs Act gives the courts of appeals, other

than the Federal Circuit, “exclusive jurisdiction to en-

join, set aside, suspend (in whole or in part), or to deter-

mine the validity of” certain agency actions, including

“all final orders of the [FCC] made reviewable by sec-

tion 402(a) of title 47.” 28 U.S.C. 2342(1); see 47 U.S.C.

402(a).' The Act also applies to certain actions of the

Secretary of Agriculture, Secretary of Housing and Ur-

ban Development, Secretary of Interior, Secretary of

Transportation, Board of Immigration Appeals, Fed-

eral Maritime Commission, Nuclear Regulatory Com-

mission, and Surface Transportation Board. See 8 U.S.C.

1252(a)(1); 28 U.S.C. 2342(2)-(7); 50 U.S.C. 16Th(b); see

also 42 U.S.C. 5841(f).

“Any party aggrieved by” a final agency action cov-

ered by the statute “may, within 60 days after its entry,

file a petition to review the order in the court of appeals

wherein venue lies.” 28 U.S.C. 2344. “The action shall

be against the United States,” ibid, and “the agency

*** may appear as [a] part{y] thereto *** as of

right,” 28 U.S.C. 2348. When more than one petition for

review is filed seeking review of a final agency order,

the petitions are consolidated in a single court of ap-

peals. 28 U.S.C. 2112(a)(3).

These requirements “promote[| judicial efficiency,

vest{] an appellate panel rather than a single district

' Review of additional FCC decisions is governed by 47 U.S.C.

402(b), which vests exclusive jurisdiction in the D.C. Circuit.

3

judge with the power of agency review, and allow| | uni-

form, nationwide interpretation of the federal statute

by the centralized expert agency created by Congress.”

CE Design, Lid. v. Prism Bus. Media, Inc., 606 F 3d

443, 450 (7th Cir. 2010) (citations and internal quotation

marks omitted), cert. denied, 562 U.S. 1138 (2011).

They also “ensure that the Attorney General has an op-

portunity to represent the interest of the Government

whenever an order of one of the specified agencies is re-

viewed.” Port of Boston Marine Terminal Ass'n v.

Rederiaktiebolaget Transatlantic, 400 US. 62, 70

(1970) (Transatlantic).

2. The Telephone Consumer Protection Act of 1991

(TCPA), Pub. L. No. 102-243, 105 Stat. 2394, generally

prohibits the use of a fax machine to send an “unsolic-

ited advertisement.” 47 U.S.C. 227(b)(1(C). The stat-

ute defines “unsolicited advertisement” to include “any

material advertising the commercial availability or

quality of any property, goods, or services which is

transmitted to any person without that person’s prior

express invitation or permission.” 47 U.S.C. 227(a)(5).

The government has authority to enforce the TCPA.

See 47 U.S.C. 501-503. The TCPA also creates private

rights of action to enforce certain provisions and regu-

lations. See 47 U.S.C. 227(b)(3) and (c)(5). Federal and

state courts have concurrent jurisdiction over private

TCPA lawsuits. See Mims v. Arrow Fin. Servs,

565 U.S. 368, 371-372 (2012).

Congress authorized the FCC to “prescribe regula-

tions to implement the requirements” of the TCPA.

47 U.S.C. 227(b)(2) (2012 & Supp. V 2017). In 2002, the

FCC sought comment on the appropriate regulatory

treatment of calls offering “free” goods or services.

A

17 FCC Red 17,459, 17,478 1 31. The Commission ob-

served that, “while these calls do not purport to sell

something,” they “often * * * are intended to generate

future business” and are “motivated in part by the de-

sire to ultimately sell additional goods or services.”

Ibid. The FCC also sought comment on issues relating

to unsolicited fax advertisements. /d. at 17,482-17,484

1 37-40.

In July 2003, following extensive public comment,

the FCC issued an order ruling that “[o)ffers for free

goods or services that are part of an overall marketing

campaign to sell property, goods, or services” constitute

“unsolicited advertisements” under the TCPA. 18 FCC

Red 14,014, 14,097-14,098 71 140. The agency subse-

quently received numerous petitions for clarification or

reconsideration. One petition, filed by a healthcare

publishing company, asked the FCC to reconsider or

clarify its interpretation to exclude faxes offering free

information about pharmaceutical products to pharma-

cists or free medical seminars to physicians.’ Another

asked the FCC to clarify that faxes offering “specialized

trade or business publications provided at no charge”

are not “unsolicited advertisements.”* The FCC issued

* CG 02-278 Pet. of Jobson Publ’g L.L.C. at 1 (Aug. 25, 2003),

https-//www.fee.gov/ecfs/filing/5509934940, see CG 02-278 Pet.

———i re eee

ec fs/filing/5509935015

* CG 02-278 Pet. of Proximity Mktg. at 3 (Aug. 6, 2003), https://

www fee.gov/ecfs/filing/5509535325; see CG 02-278 Pet. of Am. Bus.

Media (Aug. 25, 2003), https://www fee. gov/ecfa/filing/5509934906

(similar).

5

a public notice seeking comment on the various peti-

tions, including the two petitions described above.‘

In 2006, the FCC issued a further order to imple-

ment then-recent statutory changes and “to address

certain issues raised in petitions for reconsideration

of” the 2003 order. 21 FCC Red 3787, 3788 411. The

2006 order stated that “facsimile messages that pro-

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

magazine subscriptions, catalogues, or free consulta-

tions or seminars, are unsolicited advertisements under

the TCPA’s definition.” Jd. at 3814 152. The Commis-

sion explained that “‘free’ publications are often part of

an overall marketing campaign” because, “while the

publication itself may be offered at no cost to the fac-

simile recipient, the products promoted within the pub-

lication are often commercially available.” Jbid. The

FCC concluded that “such messages describe the ‘qual-

ity of any property, goods, or services’” under the

TCPA’s definition of “unsolicited advertisement.” /bid.

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

The FCC published a summary of this determination

in the Federal Register. 71 Fed. Reg. 25,967, 25,973

(May 3, 2006). Two parties petitioned for judicial review

of the order, but their challenge was dismissed on pro-

cedural grounds. Biggerstaff v. FCC, 511 F.3d 178

(D.C. Cir. 2007).

3. Petitioners publish the Physicians’ Desk Refer-

ence, a compendium of prescription-drug information.

Manufacturers pay to have their drugs included, Pet.

App. 3a, and petitioners make the reference available to

physicians and others free of charge, id. at 35a.

‘ https://does. fee. gov/public/attachmenta/DOC -238758A 1.pdf; see

68 Fed. Reg. 53,740 (Sept. 12, 2003).

6

According to the complaint, PDR Network sent re-

spondent an unsolicited fax describing the benefits of

the Physicians’ Desk Reference and inviting respond-

ent to request a free electronic version. Pet. App. 3a-

4a. Respondent filed suit, alleging that petitioners had

violated the TCPA by sending an unsolicited fax adver-

tisement. /d. at 2a. Respondent sought to represent a

class consisting of itself and other entities that had re-

ceived the same fax. /d. at 4a.

Petitioners moved to dismiss the complaint for fail-

ure to state a claim. They “argued that the fax offering

the free e-book could not be considered an unsolicited

advertisement as a matter of law because it did not

offer anything for sale.” Pet. App. 4a-5a. Respondent

opposed, citing the 2006 FCC order. /d. at 5a. Re-

spondent further urged that, because the Hobbs Act

vests courts of appeals with exclusive jurisdiction to de-

termine the validity of final FCC orders, the district

court could not reject or ignore the FCC’s interpreta-

tion.

The district court granted petitioners’ motion to dis-

miss. Pet. App. 32a-43a. The court analyzed the 2006

FCC order under Chevron U.S.A. Inc. v. Natural Re-

sources Defense Council, Inc., 467 U.S. 837 (1984). Pet.

App. 39a-40a. At step one of the Chevron analysis, the

court held that the term “unsolicited advertisement” in

the TCPA is unambiguously limited to faxes with a com-

mercial aim. /d. at 40a-41a; see id. at 36a-37a. It con-

cluded that the FCC’s interpretation in the 2006 order

therefore was not entitled to deference. /d. at 40a. The

court also viewed the text of the 2006 order as con-

sistent with the court’s interpretation of the TCPA.

7

Id. at 40a-4la. Finally, the court concluded that re-

spondent had not pleaded facts that would demonstrate

that the fax here had a commercial aim. /d. at 42a-43a.

4. The court of appeals reversed. Pet. App. la-3la.

The court observed that “[nJjeither party ha[d] disputed

that the 2006 FCC rule is the sort of ‘final order’ con-

templated by the Hobbs Act.” /d. at 7an.1. It then con-

cluded that “(t]he district court erred when it eschewed

the Hobbs Act’s command in favor of Chevron analysis

to decide whether to adopt the 2006 FCC Rule.” Jd. at

8a. The court rejected petitioners’ argument that the

Hobbs Act did not apply because “the district court did

not specifically invalidate” the FCC’s rule, but “merely

chose not to apply it.” /d at 10a. It concluded that

“li}jnvalidation by any other name still runs afoul of the

Hobbs Act’s constraints.” Jbid. The court of appeals

also concluded that the 2006 order’s “meaning is plain,”

id. at 13a, and that the order articulates “this simple

rule: faxes that offer free goods and services are adver-

tisements under the TCPA,” id. at 14a.

Judge Thacker dissented. Pet. App. 19a-3la. Apply-

ing Chevron, she concluded that the TCPA is ambiguous

as to whether an “advertisement” must have a commer-

cial aim, and that the 2006 FCC order did require such

a purpose. /d. at 25a-26a.

5. This Court granted certiorari, limited to the ques-

tion whether the Hobbs Act required the district court

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

TCPA.

SUMMARY OF ARGUMENT

The Hobbs Act’s grant of exclusive jurisdiction to the

courts of appeals to determine the validity of particular

agency orders deprives district courts and state courts

8

of authority to determine those orders to be invalid out-

side of the Hobbs Act’s channels.

I. A. 1. The Hobbs Act’s language is clear. A court

“determines” the validity of an order when it “settle[s]

a question or controversy about” the order’s validity.

Webster’s New International Dictionary of the English

Language 711 (2d ed. 1958) (Webster’s Second). An or-

der is “valid,” in turn, if it is “sound [or] good,” or “le-

gally sufficient or efficacious; incapable of being right-

fully overthrown or set aside.” Jd. at 2813. Consistent

with that language, every court of appeals to consider

the issue has determined that the Hobbs Act provides

the exclusive procedure through which courts may de-

cide whether a covered order is legally sound, and fore-

closes courts from making such determinations in civil

litigation between private parties.

2. History confirms the statute’s meaning. Con-

gress borrowed the formulation here from the Emer-

gency Price Control Act of 1942 (EPCA), ch. 26, 56 Stat.

23, which created “exclusive jurisdiction” in a particular

court to “determine the validity of” certain price control

orders. EPCA § 204(d), 56 Stat. 33. This Court inter-

preted that language to foreclose challenges to covered

orders in enforcement proceedings, outside the pre-

scribed statutory channels. Woods v. Hills, 334 U.S.

210, 213-214 (1948); Yakus v. United States, 321 U.S.

414, 429-430 (1944).

3. This Court’s cases, too, establish that the Hobbs

Act bars collateral attacks like those here. In Port of

Boston Marine Terminal Ass’n v. Rederiaktiebolaget

Transatlantic, 400 U.S. 62, 70 (1970), the Court found

a defense in a civil suit barred because it would amount

to a collateral attack on a determination of the Federal

Maritime Commission (FMC). In FCC v. ITT World

9

Communications, Inc., 466 U.S. 468, 468 (1984), the

Court similarly barred an attempt to enjoin certain FCC

consultations because the FCC had denied a rulemak-

ing petition raising the same basic arguments. In ap-

plying a predecessor statute containing much of the

Hobbs Act’s operative language, this Court likewise fo-

cused on whether the effect of a litigant’s claim would

be to deem covered agency action invalid. Venner v.

Michigan Cent. R.R., 271 U.S. 127, 128-130 (1926).

4. Statutory text is reinforced by structure. The

Hobbs Act requires that suits to determine the validity

of covered orders be brought against the United States,

to “ensure that the Attorney General has an oppor-

tunity to represent the interest of the Government

whenever an order of one of the specified agencies is re-

viewed.” Transatlantic, 400 U.S. at 70. That design

would be “vitiate[d]” if courts could determine covered

orders to be invalid in civil suits between private par-

ties, without the United States’ participation. /bid

Federal law also imposes stringent deadlines for Hobbs

Act challenges, and provides for consolidation of such

challenges in a single court of appeals, in order to pro-

vide swift, nationwide determinations of orders’ valid-

ity. That structure would be undermined if litigants

could obtain determinations that covered orders were

invalid outside of the statutory time limits and central-

ized channels.

B. 1. Petitioners urge that the Hobbs Act’s conferral

of exclusive jurisdiction to “determine the validity” of cov-

ered enactments refers only to declaratory-judgment

suits. But petitioners identify no definition, case, or

treatise that supports that limitation. Surrounding pro-

visions do not do so, either.

10

2. Petitioners also invoke the Administrative Proce-

dure Act (APA), 5 U.S.C. 701 et seg. But the APA makes

clear that agency actions are not subject to judicial re-

view in enforcement proceedings when a statute creates

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

view. 5 U.S.C. 703. The Hobbs Act satisfies the concept

of adequacy developed in decisions of this Court and in-

corporated into the APA. Petitioners’ inadequacy argu-

ments are untethered to that concept, and lack merit on

their own terms.

3. Petitioners invoke other statutes that permit

challenges to regulations during enforcement actions.

But those statutes lack the Hobbs Act’s broad language,

and do not share the relevant statutory history. Peti-

tioners also invoke court of appeals decisions holding

that litigants in Hobbs Act suits may call into question

past orders that formed the basis for the agency action

under review. But those decisions simply address the

scope of timely Hobbs Act suits. The same circuit

courts uniformly hold that litigants may not circumvent

the Hobbs Act by challenging covered orders in civil

suits between private parties. And the presumption of

reviewability, on which petitioners also rely, has no ap-

plication because the Hobbs Act provides a mechanism

for judicial review of the covered agency actions.

4. Petitioners raised no constitutional arguments

below, and constitutional avoidance has no role when

the statutory text is clear. Moreover, neither due pro-

cess nor separation of powers bars Congress from es-

tablishing an exclusive channel for judicial review of

certain agency orders.

Il. Petitioners’ belated contention that the FCC or-

der in this case would not have been reviewable under

the Hobbs Act is forfeited. The court of appeals found

11

it undisputed that the order was covered by the Hobbs

Act. Petitioners did not challenge that determination in

seeking certiorari or raise any argument pertaining to

interpretive rules. In any event, the Hobbs Act covers

“all final orders” of the FCC, aside from certain licens-

ing decisions. 28 U.S.C. 2342(1); 47 U.S.C. 402(a). It

draws no distinction between legislative and interpre-

tive rules.

ARGUMENT

I. THE HOBBS ACT BARRED PETITIONERS FROM

COLLATERALLY ATTACKING THE VALIDITY OF THE

2006 FCC ORDER IN CIVIL LITIGATION OUTSIDE THE

HOBBS ACT’S CHANNELS

The Hobbs Act confers on the courts of appeals

“exclusive jurisdiction” to “determine the validity of”

specified categories of agency actions, including certain

final orders of the FCC. 28 U.S.C. 2342; 47 U.S.C.

402(a). That exclusivity promotes finality, judicial

economy, and the uniform interpretation of agency

rules and orders, and it ensures that the United States

is a party to the proceeding. As every court of appeals

to address the question has determined, the Hobbs

Act’s jurisdiction-channeling provision precludes collat-

eral attacks on covered agency orders in private state-

or district-court litigation.

A. The Hobbs Act Provides The Exclusive Channel For

Obtaining Judicial Review Of Covered Agency Orders

1. By vesting the courts of appeals with exclusive ju-

risdiction to “determine the validity of” specified agen-

cy actions, 28 U.S.C. 2342, the Hobbs Act establishes

the exclusive procedure and venue to “settle a question

or controversy about” such actions’ validity. Webster’s

12

Second 711; aecord ibid. (defining “determine” as “de-

cide by authoritative or judicial sentence”); 4 The Ozx-

ford English Dictionary 550 (2d ed. 1989) (“To settle or

decide (a dispute, question, matter in debate) as a judge

or arbiter.”). A court determines an order’s “validity”

when it decides whether the order is “sound [or] good,”

or “legally sufficient or efficacious; incapable of being

rightfully overthrown or set aside.” Webster’s Second

2813 (defining “valid”); accord 9 The Ozford English

Dictionary 410; 3 Bouvier’s Law Dictionary and Con-

cise Encyclopedia 3387 (3d ed. 1914).

Petitioners contend (Br. 19) that the Hobbs Act’s ex-

clusivity provision “speaks only to jurisdiction over a

specific type of proceeding: one for direct review of

agency action, in which the petitioner seeks declaratory

or injunctive relief against the government.” The text

of the statute does not support that reading. To be

sure, a court may “determine the validity of” an agency

action in a suit brought against the government in

which the plaintiff seeks declaratory or injunctive relief.

But a court that holds an agency order to be invalid

in the course of adjudicating one private party’s liability

to another is likewise “determinfing]” the order’s “va-

lidity.”

Every court of appeals to address the issue has ac-

cordingly construed the Hobbs Act to bar courts from

determining the validity of covered agency actions in

any proceeding outside the Hobbs Act’s channels,

whether or not the litigant who disputes the action’s

validity seeks declaratory or injunctive relief against

the government. They have applied the Hobbs Act to

preclude challenges to agency regulations in suits

between private parties, e.g., Mais ». Gulf Coast Collec-

tion Bureau, Inc., 768 F.3d 1110, 1119-1121 (11th Cir.

13

2014); Leyse v. Clear Channel Broad., Inc., 545 Fed.

Appx. 444, 459 (6th Cir. 2013), cert. denied, 135 S. Ct. 57

(2014); Nack v. Walburg, 715 F.3d 680, 685-687 (8th Cir.

2013), cert. denied, 572 U.S. 1028 (2014); CE Design,

Ltd. v. Prism Bus. Media, Inc., 606 F.3d 443, 447-448

(7th Cir. 2010), cert. denied, 562 U.S. 1138 (2011); Dan-

iels v. Union Pac. R.R., 530 F.3d 936, 940-941 (D.C. Cir.

2008); City of Peoria v. General Elec. Cablevision

Corp., 690 F.2d 116, 119-121 (7th Cir. 1982), and to pre-

clude the assertion of such challenges as defenses to

civil enforcement actions brought by the government,

e.g., United States v. Dunifer, 219 F.3d 1004, 1007 (9th

Cir. 2000); United States v. Any & All Radio Station

Transmission Equip. , 207 F.3d 458, 463 (8th Cir. 2000),

cert. denied, 531 U.S. 1071 (2001).

2. The Hobbs Act’s history confirms the clear im-

port of the statutory text.

The Hobbs Act language vesting the courts of ap-

peals with “exclusive jurisdiction” to “determine the va-

lidity of” covered orders derives from the EPCA. Un-

der the EPCA, a party wishing to challenge orders fix-

ing maximum prices and rents was required to file a

protest with a federal administrator—and, when the

statute was enacted, to do so within sixty days. § 203(a),

56 Stat. 31. An aggrieved party could then appeal to a

special court comprised of Article III judges, which had

“exclusive jurisdiction to determine the validity of” a

covered order, subject to review by this Court. § 204(d),

56 Stat. 33; see § 204, 56 Stat. 31-33.

This Court construed the EPCA’s jurisdiction-

channeling provision to bar other courts from determin-

ing the validity of covered orders in all types of litiga-

tion, including enforcement suits. In Yakus v. United

14

States, 321 U.S. 414 (1944), the Court held that the stat-

ute deprived district courts of “power to consider the

validity of a price regulation as a defense to a criminal

prosecution for its violation.” Jd. at 429; see id. at 430.

‘he Court similarly found “no doubt” that the EPCA

barred a district court “from determining the validity of

an individual rent order” in a civil enforcement suit

against a landlord to recover allegedly excessive rents,

“even though the defense to the action brought there

was based on the alleged invalidity of the order.” Woods

v. Hills, 334 U.S. 210, 213-214 (1948).

When language is “obviously transplanted from an-

other source, whether the common law or other legisla-

tion, it brings the old soil with it.” Stokeling v. United

States, 139 S. Ct. 544, 551 (2019) (citation omitted)

(quoting Felix Frankfurter, Some Reflections on the

Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947)).

By incorporating EPCA language that this Court had

authoritatively construed, Congress signaled its intent

that the Hobbs Act’s grant of “exclusive jurisdiction” to

“determine the validity” of specified agency actions

should be understood in a like manner.

3. a. This Court has interpreted the Hobbs Act as

barring litigants from challenging the validity of cov-

ered agency orders during suits between private par-

ties.

In Port of Boston Marine Terminal Ass'n v.

Rederinktiebolaget Transatlantic, 400 U.S. 62 (1970),

vessel owners refused to pay certain cargo fees, assert-

ing that the fees were invalid without pre-approval from

the FMC. Id. at 70. The port operator brought suit for

damages and declaratory relief against a vessel-owner

organization. /bid. The district court stayed the pro-

ceedings to allow the parties to obtain a ruling from the

15

FMC, which concluded that the fees were largely valid

because they had not required pre-approval. /bid. An

affected carrier then moved to intervene in the damages

action, on the ground that it would be liable

for part of any judgment. Jd. at 67. The court granted

intervention, but refused to consider the carrier’s

argument—raised as a defense to potential civil liability

—that the FMC had erred in deeming the tariff revi-

sions valid. [bid.

This Court upheld the district court’s refusal to con-

sider the carrier’s arguments because that court was

“without authority to review the merits of the Commis-

sion’s decision.” Transatlantic, 400 U.S. at 69. It relied

on the Hobbs Act’s “explicit” statement that “‘[t}he

court of appeals has exclusive jurisdiction to ... deter-

mine the validity of’” final orders of the FMC. I/bid.

(citation omitted). The Court explained that an excep-

tion for cases involving referrals to the FMC “would vi-

tiate the scheme of the [Hobbs Act]—a scheme de-

signed to ensure that the Attorney General has an op-

portunity to represent the interest of the Government

whenever an order of one of the specified agencies is re-

viewed.” Jd. at 70.

This Court also rejected the carrier’s argument that,

because it had not been a party to the FMC proceed-

ings, it was “not bound by the Commission’s action.”

Transatlantic, 400 U.S. at 71. The Court explained that

the carrier was in fact “represented before the Commis-

sion and ha[{d] previously made numerous claims to

party status.” Jbid. The Court further held that,

“lelven if [the carrier] was not a formal party” in

the administrative proceeding, it was not entitled to

raise a collateral attack “in a different and inappropri-

ate forum” because “[the carrier’s] interests were

16

clearly at stake” in the administrative proceeding, “it

had every opportunity to participate before the Com-

mission and then to seek timely review in the Court of

Appeals,” and “[ijt chose not to do so.” Jd at 72. The

Court’s application of the Hobbs Act to preclude consid-

eration of a legal question in a private damages suit con-

firms that the Act’s preclusive effect extends beyond

suits seeking declaratory or injunctive relief against the

government.

b. FCC v. ITT World Communications, Inc., 466 US.

463 (1984), similarly made clear that the Hobbs Act ju-

risdictional inquiry turns on whether a litigant’s claims

would require a court to engage in “review of final [cov-

ered] FCC orders.” Jd. at 468. The plaintiffs had filed

a rulemaking petition asking the FCC to disclaim intent

to engage in certain consultations. Jd. at 465. After the

agency denied that petition, the plaintiffs filed suit in

district court. Jd. at 465-468. They did not seek judicial

relief with respect to the FCC order, but instead re-

quested that the court enjoin the consultations them-

selves. Jd. at 468. This Court held that the district

court could not entertain the suit because the Hobbs Act

establishes the exclusive avenue for “review of final

FCC orders,” and “[ljitigants may not evade” the Act’s

strictures “by requesting the District Court to enjoin

action that is the outcome of the agency’s order.” /bid.

That decision confirms that the Hobbs Act inquiry turns

not on the form of relief requested, but on whether a

claim called upon the court to “determine the validity”

of a covered order. 28 U.S.C. 2342.

c. In construing closely related statutes, courts have

likewise focused on whether a suit is “in substance a col-

lateral attack on [a covered] order” or whether the

“practical effect of a successful suit would contradict

17

or countermand” a covered order. B. F. Goodrich Co. v.

Northwest Indus., Inc., 424 F.2d 1349, 1352-1354 (3d

Cir.), cert. denied, 400 U.S. 822 (1970).

This Court prescribed that approach in construing

the Act of Oct. 22, 1913 (Urgent Deficiencies Act), ch. 32,

38 Stat. 208, which governed review of many final FCC

orders before the Hobbs Act’s enactment. See Commu-

nications Act of 1934, ch. 652 § 402(a), 48 Stat. 1093.

That statutory scheme provided the template for a sub-

stantial portion of the Hobbs Act’s language, by confer-

ring on specially constituted courts “exclusive jurisdic-

tion” over suits to “enjoin, set aside, annu[]l, or sus-

pend[]” certain orders. 28 U.S.C. 46 (1934); see Act of

June 18, 1910, ch. 309, 36 Stat. 539-540 (establishing

“exclusive” jurisdiction in a commerce court over

“[cjases brought to enjoin, set aside, annul, or suspend”

certain orders); Urgent Deficiencies Act, 38 Stat. 219-

220 (transferring jurisdiction of the commerce court to

district courts operating under special procedures).

In applying that exclusive-jurisdiction provision, this

Court focused on the practical effects of particular suits.

It explained in Venner v. Michigan Central Railroad,

271 U.S. 127 (1926), that a suit was subject to the exclu-

sive-jurisdiction provision, even if it “does not expressly

pray that [a covered] order be annulled or set aside,” if

the suit “assail[s] the validity of the order and pray/(s|

that the defendant company be enjoined from doing

what the order specifically authorizes, which is equiva-

lent to asking that the order be adjudged invalid and set

aside.” Jd. at 130. Accordingly, a shareholder in a rail-

road could not bring a suit against the railroad outside

the channels of Urgent Deficiencies Act review, when

the shareholder sought to enjoin the railroad from

carrying out an agreement that the ICC had approved.

18

Id. at 129. In Lambert Run Coal Co. v. Baltimore &

Ohio Railroad, 258 U.S. 377 (1922), the Court similarly

held that a mining company’s suit against a railroad to

enjoin it from distributing coal cars constituted a suit to

set aside an ICC order because an ICC order had sanc-

tioned the relevant coal-car schedule. /d. at 381-382.

4. The Hobbs Act’s structure and objectives rein-

force the understanding described above. Adherence to

the Hobbs Act’s jurisdictional scheme “ensure[s] that

the Attorney General has an opportunity to represent

the interest of the Government whenever an order

of the specified agencies is reviewed.” Transatlantic,

400 U.S. at 70; see 28 U.S.C. 2344. Here, as in Transat-

lantic, that aspect of the statutory design would be “vi-

tiate[d],” 400 U.S. at 70, if petitioners could assert the

invalidity of the 2006 FCC order as a defense to re-

spondent’s TCPA suit.

Permitting such collateral challenges would under-

mine other aspects of the statutory scheme as well.

Many provisions governing Hobbs Act review are de-

signed to facilitate quick, nationwide resolution of the

validity of covered agency actions. These provisions es-

tablish a 60-day filing deadline, mandate direct court-

of-appeals review, and provide for consolidation of mul-

tiple challenges in a single court of appeals. Taken to-

gether, they enable private entities, in structuring their

operations, to act in reliance on agency orders once the

time for review has expired. The Chamber of Com-

merce (Amicus Br. 6) describes this protection of reli-

ance interests as “vital to the national economy,” noting

that “[o]}nce rules are final, businesses build their oper-

ations, policies, and products around federal regulatory

expectations, often over many years.” See id. at 6-7 (ex-

amples).

19

In the TCPA context, the Hobbs Act ensures that

businesses engaged in telemarketing avoid liability

in private TCPA suits by relying on safe harbors de-

fined by the FCC. See, eg., Leyse, 545 Fed. Appx. at

445 (Hobbs Act barred collateral challenge to FCC’s

safe harbors in TCPA suit). In the present case, the in-

terpretation reflected in the 2006 FCC order tends to

support respondent’s claim that petitioners violated the

TCPA. Under petitioners’ narrow conception of the

Hobbs Act’s exclusive-jurisdiction provision, however, a

plaintiff in private TCPA litigation could likewise col-

laterally attack a prior FCC order that found the de-

fendant’s conduct to be lawful, urging the court to find

the order invalid and to impose liability on the defend-

ant. The Hobbs Act framework, and the reliance inter-

ests it serves, would be severely undermined if private

parties could challenge the validity of covered orders in

myriad courts, after the period for Hobbs Act challenge

had passed.

B. Petitioners’ Contrary Arguments Lack Merit

As noted above, petitioners contend (Br. 19) that the

Hobbs Act judicial-review mechanism is exclusive only

with respect to proceedings “for direct review of agency

action, in which the petitioner seeks declaratory or in-

junctive relief against the government.” Under that ap-

proach, litigants could assert the invalidity of covered

agency actions in private civil suits long after the period

for Hobbs Act review had expired. That interpretation

should be rejected.

I. Petitioners’ arguments lack a basis in the text

Petitioners identify no dictionary, treatise, or other

source that defines “determine,” “validity,” or any other

Hobbs Act term in a way that supports their truncated

20

conception of the Act’s exclusive-jurisdiction provision.

As explained above, when a court concludes that one

party is not liable to another because an agency order

reflects an impermissible interpretation of the govern-

ing statute or is otherwise unlawful, that court has “de-

termin[ed] the validity of” the pertinent order under

any natural understanding of that term.

Petitioners suggest (Br. 21) that several decisions of

this Court support thei: narrow construction of the key

statutory language. But those decisions simply de-

scribe declaratory-judgment actions as a way to deter-

mine the validity of a provision, without suggesting that

such suits are the only mechanism for accomplishing

that result. See Calderon v. Ashmus, 523 U.S. 740, 746

(1998) (describing prior decision as holding that a com-

pany “could bring a declaratory judgment action to de-

termine the validity of insurance policies”); Ratlway

Mail Ass’n v. Corsi, 326 U.S. 88, 91 (1945) (describing a

suit “in a state court for a declaratory judgment to de-

termine the validity” of a provision).

Petitioners also invoke (Br. 13-14) the interpretive

canon noscitur a sociis. They argue that the terms

“enjoin,” “‘suspend,’” and “‘set aside’” all refer “to a

specific type of relief—injunctive,” and that the term

“‘determine the validity’” therefore should be con-

strued as referring to another “specific type of relief —

declaratory.” Ibid. (citation omitted). But noscitur a

sociis has “no place, as this Court has many times held,

except in the domain of ambiguity.” Russell Motor Car

Co. v. United States, 261 U.S. 514, 519 (1923); see

United States v. Stevens, 559 U.S. 460, 474-475 (2010).

The term “determine the validity” unambiguously en-

compasses the situation presented here, where a court

21

is asked to decide the lawfulness of a prior FCC order

in resolving a dispute between private parties.

Moreover, as noted above, the Court in Venner held

that the Urgent Deficiencies Act should be construed by

reference to the practical effect of the suit in question,

rather than to the relief for which the litigant “ex-

pressly pray[s].” 271 U.S. at 130. The Court thus rec-

ognized that a suit may be one to “set aside” an agency

order even if it does not request injunctive relief against

the government. /bid. Given that holding, the noscitur

a sociis canon cuts against petitioners’ understanding

of the term “determine the validity.”

Petitioners’ reliance on 28 U.S.C. 2349%a), entitled

“Jurisdiction of the proceeding,” is likewise misplaced.

That provision states that, upon filing of a Hobbs Act

suit, the court of appeals “has jurisdiction to vacate stay

orders or interlocutory injunctions” and “to make and

enter, on the petition, evidence, and proceedings set

forth in the record on review, a judgment determining

the validity of, and enjoining, setting aside, or suspend-

ing, in whole or in part, the order of the agency.” Jbid.

Petitioners contend (Br. 22) that, “[i]n tying the ‘deter-

mine the validity’ phrase to a ‘judgment,’ § 2349 makes

clear that the phrase refers to a remedy that the courts

of appeals may enter as part of the judgment.”

Petitioners’ argument conflates the judicial relief

that the Hobbs Act authorizes with the broader range

of collateral attacks that it forecloses. The Hobbs Act

authorizes courts of appeals to conduct direct review of

covered agency actions, in a proceeding where the

United States is named as respondent. Section 2349 de-

lineates the court’s jurisdiction and powers in conduct-

ing that form of direct review. In authorizing a review-

22

ing court “to make and enter * ** a judgment deter-

mining the validity of, and enjoining, setting aside, or

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

agency,” Section 2349(a) specifies the types of relief

that a court may enter in a Hobbs Act proceeding

against the government. 28 U.S.C. 2349(a).

The Hobbs Act’s barrier to collateral attacks is set

forth not in Section 2349, which defines the jurisdiction

and powers of courts that conduct Hobbs Act review,

but in Section 2342, which states that the Hobbs Act

provides the “exclusive” means of obtaining specified

types of rulings. Section 2342 does not contain the word

“judgment” that petitioners highlight in Section

2349(a). Thus, rather than stating that courts of appeals

have exclusive jurisdiction to enter “a judgment deter-

mining the validity of” a covered agency order (28 U.S.C.

2349(a)), Section 2342 states more broadly that those

courts have exclusive jurisdiction “to determine the va-

lidity of” covered orders (28 U.S.C. 2342). Petitioners

disregard that textual difference.

Petitioners also rely on a Communications Act pro-

vision directing that “[aJny proceeding to enjoin, set

aside, annul, or suspend any order of the Commission”

must “be brought as provided by and in the manner pre-

scribed in” the Hobbs Act. Pet. Br. 23 (quoting

47 U.S.C. 402(a)). Petitioners contend (ibid) that be-

cause this provision refers “only to proceedings ‘brought’

to obtain non-monetary relief against the FCC,” the

Hobbs Act should be read to embody the same limitation.

But the Communications Act provision is not plausibly

read to reach only “proceedings ‘brought’ to obtain non-

monetary relief against the FCC,” ibid, because the

Court in Venner construed virtually identical language

governing review under the Urgent Deficiencies Act to

23

lack such a limitation. 271 U.S. at 130; see Urgent De-

ficiencies Act, 38 Stat. 220 (provision governing “any

suit brought to suspend or set aside, in whole or in part,

any order of” a covered agency); see also 28 U.S.C. 46

(1934); pp. 17-18, supra. In any event, because the

Hobbs Act defines the “exclusive jurisdiction” vested in

the courts of appeals in broader terms than those used

in the Communications Act, see 28 U.S.C. 2342, it would

be inappropriate to import any textual limitations in

Section 402(a) into the Hobbs Act’s exclusive-jurisdiction

provision.

Petitioners also suggest (Br. 34) that, if Congress

had intended to foreclose collateral attacks on the valid-

ity of agency orders in private civil lawsuits, it would

have stated that intent explicitly. As petitioners points

out, some more recent jurisdiction-channeling provi-

sions state that covered agency actions “shall not be

subject to judicial review in any civil or criminal pro-

ceedings for enforcement.” See ibid. (quoting 33 U.S.C.

1369(b)(2)) (emphasis omitted). But Congress enacted

the Hobbs Act more than a decade before any of the pro-

visions on which petitioners rely. Well before the Hobbs

Act was enacted, moreover, the Court in Venner had held

that the Urgent Deficiencies Act’s conferral of exclusive

jurisdiction foreclosed collateral challenges in litigation

between private parties. 271 U.S. at 130. The fact that

more recent Congresses have foreclosed collateral chal-

lenges through differently worded provisions—none of

which include the term “exclusive jurisdiction” —does

not cast doubt on the proper interpretation of the

Hobbs Act.

24

2. The Administrative Procedure Act does not support

petitioners’ reading of the Hobbs Act

In arguing that the Hobbs Act’s exclusive-jurisdiction

provision is limited to suits for declaratory and injunc-

tive relief against the government, petitioners rely in

part (Br. 24-31) on 5 U.S.C. 703, a provision of the ear-

lier-enacted APA. Section 703 provides in pertinent

part that, “/e/xcept to the extent that prior, adequate,

and exclusive opportunity for judicial review is pro-

vided by law, agency action is subject to judicial review

in civil or criminal proceedings for judicial enforce-

ment.” 5 U.S.C. 703 (emphasis added). Section 703 thus

establishes a general rule that, when a defendant’s lia-

bility depends in part on the propriety of an agency ac-

tion, that action ordinarily can be challenged in a civil

or criminal enforcement suit. The italicized language

specifically contemplates, however, that judicial review

of a prior agency action will be wnavailable during en-

forcement proceedings if an “adequate” opportunity to

obtain review was previously available and that avenue

has been designated as “exclusive.”

Petitioners suggest (Br. 24-31) that Section 703’s

prerequisites to preclusion of review are not satisfied

here because the Hobbs Act does not afford petitioners

an “adequate” opportunity to challenge the 2006 FCC

order. That argument lacks merit.

a. Section 703’s reference to an “adequate” oppor-

tunity for judicial review was drawn from this Court’s

pre-APA decisions addressing exclusive-jurisdiction

provisions. In Yakus—decided two years before the

APA was enacted—the Court held that foreclosure of

judicial review in later enforcement proceedings posed

no due process problem so long as litigants had previ-

ously received an “adequate” opportunity to challenge

25

the relevant agency order. 321 U.S. at 434, 436-437.

The Court declined to deem “inadequate” the prior op-

portunity in Yakus, which involved filing a claim before

the agency and then seeking review from a special Ar-

ticle III court. Jd. at 436; see id. at 434-437; see also

Bowles v. Willingham, 321 U.S. 503, 516 (1944) (“Here,

as in the Yakus case, the standards prescribed by the

act are adequate for the judicial review which has been

accorded.”). The Court thus made clear that exclusive-

review mechanisms are not “inadequate” simply be-

cause litigants must present their claims to the agency

and then seek judicial review within a particular time.

See Yakus, 321 U.S. at 433-435 & n.3.

Section 703 is most naturally understood to incorpo-

rate the concept of “adequacy” that the Court articu-

lated in Yakus. Paul R. Verkuil, Congressional Limi-

tations on Judicial Review of Rules, 57 Tulane L. Rev.

733, 741 n.34 (1983) (explaining that Section 703 “incor-

porates the ‘adequacy’ standard of Yakus”); see Samuel!

A. Bleicher, Economic and Technical Feasibility in

Clean Air Act Enforcement Against Stationary

Sources, 89 Harv. L. Rev. 316, 353 n.205 (1975) (describ-

ing Section 703 as a “codification of [the] Yakus rule”).

That inference is confirmed by the Attorney General’s

Manual on the Administrative Procedure Act (1947)

(APA Manual), which this Court has repeatedly cited

as a persuasive authority. See Norton v. Southern

Utah Wilderness Alliance, 542 U.S. 55, 63-64 (2004)

(citing cases). The manual explains that the APA incor-

porates “the legal standard which courts *** hajd]

already developed” regarding “the adequacy of statu-

tory review procedures,” APA Manual 98, and that

Section 703’s statement regarding a “‘prior, adequate,

26

and exclusive’” channel of review simply “restates ex-

isting law,” id. at 99 (citations omitted); see id. at 100.

b. Petitioners’ arguments for viewing Hobbs Act re-

view as inadequate here are untethered to the concept

that the APA incorporated. They are also implausible

on their own terms.

Petitioners suggest (Br. 25-26) that Hobbs Act chan-

nels were not “adequate” within the meaning of Section

703 because petitioners could not have asserted a Hobbs

Act challenge to the 2006 FCC order when respondent

commenced the present suit in 2014. Petitioners are

correct that they could not have invoked the Hobbs Act

review mechanism at that time, both because they never

presented their claims to the agency in connection with

the 2006 order and because a Hobbs Act petition for re-

view filed in 2014 would have been untimely.’ Contrary

to petitioners’ suggestion, however, a mode of judicial

review is not inadequate simply because a particular lit-

igant fails to satisfy the statutory prerequisites for in-

voking it.

As one court explained in rejecting a similar argu-

ment, “(i]t is hard to believe’” that Congress would

have prescribed “a centralized forum [for] review,” but

“‘made the remedy optional and contemplated that the

regulation could also be challenged by defiance.’”

United States v. Szabo, 760 F.3d 997, 1006 (9th Cir.

* An entity becomes a “party aggrieved” entitled to seek Hobbs

Act review of an agency determination by presenting its views to

the agency—typically through a comment or other written submis-

sion on a proposed rule. Water Transp. Ass'n v. ICC, 819 F.2d 1189,

1192-1993 (D.C. Cir. 1987) (citation omitted). Parties also commonly

become “part/ies] aggrieved” by seeking timely reconsideration of

an order. 47 U.S.C. 405; see 47 C.F.R. 1.42% j). Reconsideration

may be sought on grounds of “material error, omission, or [other]

reason warranting reconsideration.” 47 C.F.R. 1.42%1)(1).

27

2014) (citation omitted); see 16 Charles Alan Wright et

al., Federal Practice and Procedure § 3943 (2012 &

Supp. 2018). Petitioners’ theory is also inconsistent

with Transatlantic, in which the Court held that a liti-

gant’s collateral attack was precluded even though the

passage of time had made Hobbs Act review unavaila-

ble. See 400 U.S. at 66-69. Petitioners are thus incor-

rect in suggesting that the Hobbs Act channel for re-

view became inadequate simply because petitioners’

failure to comply with its timing and agency-exhaustion

requirements means that the channel is not now availa-

ble to them.

Petitioners also suggest (Br. 26) that the Hobbs

Act’s review mecha_ism was inadequate because peti-

tioners “had no basis to suspect” that the 2006 order

would be construed as establishing that faxes offering

free goods constitute “advertisements” under the

TCPA. Petitioners’ premise, however, is directly con-

trary to a holding below that this Court declined to re-

view. The court of appeals found that the 2006 order

was “clear and unambiguous,” Pet. App. 13a, and artic-

ulated “this simple rule: faxes that offer free goods and

services are advertisements under the TCPA,” id. at

14a. Because this Court’s grant of certiorari was lim-

ited to the question whether the Hobbs Act required the

district court to accept the FCC’s interpretation of the

TCPA, 139 S. Ct. 478, petitioners’ contention that the

2006 FCC order was actually ambiguous is not properly

before the Court.*®

* Courts that lack jurisdiction to determine the validity of partic-

ular agency orders remain free to resolve ambiguities in those or-

ders, and to consider the broader statutory scheme in deciding how

an ambiguous agency pronouncement should be construed. Thus, a

28

Petitioners also posit (Br. 27-38, 33) other fact pat-

terns under which the Hobbs Act review mechanism

could be inadequate. Petitioners suggest that the stat-

utory time limitations would make Hobbs Act review

inadequate for “parties that first come into existence af-

ter the 60-day direct review window has closed,” id. at

28, or in a case where Congress has superseded a rule

by statute, id. at 33. That argument provides no sound

basis for declining to enforce the Hobbs Act’s exclusiv-

ity provision here.

Even in circumstances where a particular challenge

could not feasibly have been brought within the initial

60-day window for seeking Hobbs Act review, potential

challengers are not without recourse under the Hobbs

Act. See WWHT, Inc. v. FCC, 656 F.2d 807, 819 (D.C.

Cir. 1981) (“[A]n agency may be forced by a reviewing

court to institute rulemaking proceedings if a signifi-

cant factual predicate of a prior decision on the subject

(either to promulgate or not to promulgate specific

rules) has been removed.”); see also Natural Res. Def.

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

603-604 (D.C. Cir. 1981). In any event, the possibility

that the Hobbs Act review mechanism might be inade-

quate for other litigants with different claims does not

mean that petitioners themselves lacked a “prior, ade-

quate, and exclusive opportunity for judicial review” of

the 2006 FCC order. 5 U.S.C. 708. Petitioners have

identified no basis for doubting that they could feasibly

court may choose, among “permissible reading{s|” of an agency reg-

ulation, the one that the court considers most in “harmony with the

|court’s} view of the statute.” Environmental Def. v. Duke Energy

Corp., 549 U.S. 561, 573 (2007). But it may not “determin{e] that the

regulation as written is invalid.” [bid ; see Decker v. Northwest En-

vil Def. Ctr., 568 U.S. 597, 608-609 (2013).

29

have utilized the Hobbs Act procedure to challenge the

2006 order. See Yakus, 321 U.S. at 447 (defendants

could not collaterally attack regulation when they had

not used “the procedure which was open to them and it

does not appear that they have been deprived of the op-

portunity to do so”).

In discussing Transatlantic and ITT, petitioners

acknowledge that, when an order “settl[es| the rights or

duties of a specific party” (Br. 29), or when a party par-

ticipated in or was “adequately represented | in” agency

proceedings (Br. 31), the Hobbs Act’s time-limited chan-

nels provide that party an adequate opportunity for re-

view. Petitioners suggest (Br. 28), however, that no

other regulated party can be expected to “stay/{] abreast

of rule-makings” or to challenge an assertedly unlawful

agency rule before that rule is applied to its own activi-

ties. But the expectation that regulated parties will

keep abreast of agency actions that may affect their op-

erations is a basic premise of federal law. Federal law

provides—and this Court’s decisions reflect—that “the

appearance of rules and regulations in the Federal Reg-

ister gives legal notice of their contents.” Federal Crop

Ins. Corp. v. Merrill, 332 U.S. 380, 384-385 (1947); see

44 U.S.C. 1507 (“Unless otherwise specifically provided

by statute, filing of a document” in the Federal Register

“is sufficient to give notice of the contents of the docu-

ment to a person subject to or affected by it”); see also

United States v. International Minerals & Chem.

Corp., 402 U.S. 558, 563 (1971). Petitioners are there-

fore mistaken in contending that the Hobbs Act pro-

vides an inadequate mechanism for challenges to agency

rules of general applicability.

30

3. Petitioners’ other statutory arguments also lack

merit

Petitioners argue (Br. 31-33) that the Hobbs Act

should be construed to allow collateral challenges to the

validity of rules in civil litigation between private par-

ties because certain other agency-review statutes chan-

nel declaratory-judgment challenges to appellate courts

while also permitting challenges to regulations during

enforcement actions. But the Hobbs Act—unlike the

statutes that petitioners invoke—-vests the courts of ap-

peals with “exclusive jurisdiction” to “determine the va-

lidity of” the classes of agency actions specified in the

statute. 28 U.S.C. 2342. The clear import of that statu-

tory language is reinforced by the fact that two statutes

from which critical Hobbs Act language was drawn had

previously been construed to foreclose collateral at-

tacks in civil suits and enforcement actions. See Ven-

ner, 271 U.S. at 128-130; Yakus, 321 U.S. at 429-430.

Petitioners also invoke (Br. 27) court of appeals de-

cisions holding that, when an agency applies an order in

a later proceeding that is itself subject to review under

the Hobbs Act, the new Hobbs Act proceeding may in-

clude review of the earlier order. See, e.g., Functional

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

cert. denied, 361 U.S. 813 (1959). But the decisions on

which petitioners rely reflect the conclusion that an

agency action that applies a past determination starts a

new sixty-day period for review under the Hobbs Act.

Even then, review must be obtained in the court of ap-

peals under the Hobbs Act procedures. The courts of

appeals have uniformly rejected arguments that district

courts may entertain collateral attacks on covered or-

ders that are brought outside the Hobbs Act’s channels.

See pp. 12-13, supra.

31

Petitioners’ reliance (Br. 35) on the presumption of

reviewability is similarly misplaced. Absent clear evi-

dence of a contrary congressional intent, courts pre-

sume that “Congress intends judicial review of admin-

istrative action.” Bowen v. Michigan Academy of Fam-

ily Physicians, 476 U.S. 667, 670 (1986). That presump-

tion is implicated, however, only when one potential

reading of a statute would insulate particular agency ac-

tion from all judicial review. In this case, the Fourth

Circuit did not dispute that the 2006 FCC order was

subject to judicial review; it simply held that the Hobbs

Act procedures were the sole means by which such re-

view could be obtained. “Because court of appeals re-

view is available, this case does not implicate ‘the strong

presumption that Congress did not mean to prohibit all

judicial review.” Thunder Basin Coal Co. v. Reich,

510 U.S. 200, 207 n.8 (1994) (citations omitted).

4. Principles of constitutional avoidance do not support

petitioners’ approach

Petitioners press (Br. 39-45) constitutional argu-

ments that were neither raised nor addressed below.

They contend that, to avoid potential constitutional con-

cerns, this Court should construe the Hobbs Act’s ex-

clusive-jurisdiction provision as limited to suits seeking

declaratory or injunctive relief. The principle that con-

stitutional difficulties should be avoided if possible,

however, “does not give the court the authority to re-

write a statute as it pleases,” but simply permits a court

to “choose between competing plausible interpreta-

tions of a statutory text."” Jennings v. Rodriguez,

138 S. Ct. 830, 843 (2018) (brackets, citation, and em-

phasis omitted). Given its language, the history of its

operative terms, and this Court’s precedents, the Hobbs

32

Act cannot plausibly be read to contain the limitation

that petitioners advocate.

In any event, petitioners’ constitutional claims lack

merit. Due process does not require that litigants be

permitted to challenge an agency order at whatever

time, or in whatever forum, they prefer. It instead “re-

quires the government to provide notice reasonably cal-

culated, under all the circumstances, to apprise inter-

ested parties of the pendency of the action and afford

them an opportunity to present their objections.” Jones

v. Flowers, 547 U.S. 220, 226 (2006) (citation and internal

quotation marks omitted). Here, petitioners had ade-

quate notice and a meaningful opportunity to obtain re-

view of the 2006 order. See Merrill, 332 U.S. at 384-385;

International Minerals, 402 U.S. at 563; 44 U.S.C. 1507.

The availability of judicial review also refutes peti-

tioners’ separation-of-powers argument (Br. 41-45).

The Hobbs Act does not deny the federal judiciary the

power to decide the legality of covered agency actions.

to ensure that orders are reviewed with the particips-

tion of the government and on a developed administra-

tive record. “There is no constitutional requirement

that [a challenge] be made in one tribunal rather than

in another, so long as there is an opportunity to be heard

and for judicial review which satisfies the demands of

due process.” Yakus, 321 U.S. at 444; see United States

v. Ruzicka, 329 U.S. 287, 292-294 (1946). Quoting Pro-

fessor Hart, petitioners question whether, “in a civil en-

forcement proceeding, questions of law can be validly

withdrawn from the consideration of the enforcement

court where no adequate opportunity to have them de-

termined by a court has been previously accorded.”

33

Pet. Br. 42 n.7 (emphasis added). Because petitioners

had an adequate opportunity to obtain Hobbs Act re-

view of the 2006 FCC order, that question is not impli-

cated here.

IL. PETITIONERS’ ARGUMENT THAT THE 2006 FCC

ORDER WAS NOT REVIEWABLE UNDER THE HOBBS

ACT IS NOT PROPERLY BEFORE THIS COURT, AND

LACKS MERIT IN ANY EVENT

In their merits brief, petitioners argue for the first

time (Br. 45-50) that the 2006 FCC order was “not re-

viewable under 47 U.S.C. § 402(a) or the Hobbs Act” be-

cause the order constitutes an interpretive rule. Pet.

Br. 49. The argument is not properly before the Court.

It also lacks merit.

The court of appeals observed that “[njeither party

has disputed that the 2006 FCC Rule is the sort of ‘final

order’ contemplated by the Hobbs Act.” Pet. App. 7a

n.1. In seeking this Court’s review, petitioners did not

challenge that characterization of the arguments below,

nor did they dispute that the 2006 order was covered by

the Hobbs Act. Nor did petitioners raise any other ar-

gument based on the status of interpretive rules. In-

stead, they contended (Pet. 13-20) that the district court

had not “determine[d] the validity of” the order within

the meaning of Section 2342. An “argument” that was

“not raise[d]” or “address[ed]” below is “forfeited.”

United States v. Jones, 565 U.S. 400, 413 (2012).

In any event, the statute’s “exclusive” review frame-

work extends to “all final orders * * * made reviewable

by section 402(a) of title 47.” 28 U.S.C. 2342(1). Section

402(a), in turn, makes reviewable “any order of the

Commission,” 47 U.S.C. 402(a), except for certain li-

censing decisions. The availability of Hobbs Act review

therefore does not turn on whether the 2006 order sets

34

out a legislative rule or instead constitutes an interpre-

tive rule. Surrounding subprovisions governing Hobbs

Act review of other agencies’ actions reinforce that con-

clusion. Several make reviewable “all rules [or] regu-

lations” issued by particular agencies under specified

statutory provisions, see 28 U.S.C. 2342(3) and (5) (em-

phasis added)—language that likewise draws no distinc-

tion between legislative and interpretive rules.

Section 2342 thus “contains no exception for ‘inter-

pretive’ rules.’” US West Commce’ns, Inc. v. Hamilton,

224 F.3d 1049, 1055 (9th Cir. 2000). Accordingly, courts

applying the Hobbs Act have consistently treated as re-

viewable even those FCC orders that set out interpre-

tive rules. See, e.g., Sorenson Comme’ns, Inc. v. FCC,

567 F.3d 1215, 1223 (10th Cir. 2009); SBC Inc. v. FCC,

414 F.3d 486, 501 (3d Cir. 2005); Central Tex. Tel. Coop.,

Inc. v. FCC, 402 F.3d 205, 213 (D.C. Cir. 2005). Peti-

tioners therefore identify no sound basis for doubting

that the 2006 FCC order could have been reviewed un-

der the Hobbs Act when issued.

“ONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

THOMAS M. JOHNSON, JR.

General Counsel

FEBRUARY 2019

NOEL J. FRANCISCO

Solicitor General

Joseps H. HUNT

Assistant Attorney General

MALCOLM L. STEWART

Deputy Solicitor General

RACHEL P. KOVNER

Assistant to the Solicitor

General

MARK B. STERN

MICHAEL 8S. RAAB

LINDSEY POWELL

Attorneys

APPENDIX

1. 28 U.S.C. 2342 provides:

Jurisdiction of the court of appeals

The court of appeals (other than the United States

Court of Appeals for the Federal Circuit) has exclusive

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

part), or to determine the validity of —

(1) all final orders of the Federal Communica-

tions Commission made reviewable by section 402(a)

of title 47;

(2) all final orders of the Secretary of Agricul-

ture made under chapters 9 and 20A of title 7, except

orders issued under sections 210(e), 217a, and 499g(a)

of title 7;

(3) all rules, regulations, or final orders of —

(A) the Secretary of Transportation issued

pursuant to section 50501, 50502, 56101-56104, or

57109 of title 46 or pursuant to part B or C of

subtitle [V, subchapter III of chapter 311, chapter

313, or chapter 315 of title 49; and

(B) the Federal Maritime Commission issued

pursuant to section 305, 41304, 41308, or 41309 or

chapter 421 or 441 of title 46;

(4) all final orders of the Atomic Energy Com-

mission made reviewable by section of title 42;

(5) all rules, regulations, or final orders of the

Surface Transportation Board made reviewable by

section 2321 of this title;

(la)

2a

(6) all final orders under section 812 of the Fair

Housing Act; and

(7) all final agency actions described in section

20114(c) of title 49.

Jurisdiction is invoked by filing a petition as provided

by section 2344 of this title.

2. 28 U.S.C. 2344 provides:

Review of orders; time; notice; contents of petition;

service

On the entry of a final order reviewable under this

chapter, the agency shall promptly give notice thereof

by service or publication in accordance with its rules.

Any party aggrieved by the final order may, within

60 days after its entry, file a petition to review the order

in the court of appeals wherein venue lies. The action

shall be against the United States. The petition shall

contain a concise statement of —

(1) the nature of the proceedings as to which

review is sought;

(2) the facts on which venue is based;

(3) the grounds on which relief is sought; and

(4) the relief prayed.

The petitioner shall attach to the petition, as exhibits,

copies of the order, report, or decision of the agency.

The clerk shall serve a true copy of the petition on the

agency and on the Attorney General by registered mail,

with request for a return receipt.

3a

3. 28 U.S.C. 2348 provides:

Representation in proceeding; intervention

The Attorney General is responsible for and has

control of the interests of the Government in all court

proceedings under this chapter. The agency, and any

party in interest in the proceeding before the agency

whose interests will be affected if an order of the agency

is or is not enjoined, set aside, or suspended, may ap-

pear as parties thereto of their own motion and as of

right, and be represented by counsel in any proceeding

to review the order. Communities, associations, corpo-

rations, firms, and individuals, whose interests are af-

fected by the order of the agency, may intervene in any

proceeding to review the order. The Attorney Gen-

eral may not dispose of or discontinue the proceeding

to review over the objection of any party or intervenor,

but any intervenor may prosecute, defend, or continue

the proceeding unaffected by the action or inaction of

the Attorney General.

4. 28 U.S.C. 2349%(a) provides:

Jurisdiction of the proceeding

(a) The court of appeals has jurisdiction of the pro-

ceeding on the filing and service of a petition to review.

The court of appeals in which the record on review is

filed, on the filing, has jurisdiction to vacate stay or-

ders or interlocutory injunctions previously granted by

any court, and has exclusive jurisdiction to make and

enter, on the petition, evidence, and proceedings set

forth in the record on review, a judgment determining

4a

the validity of, and enjoining, setting aside, or suspend-

ing, in whole or in part, the order of the agency.

5. 5 U.S.C. 708 provides:

Form and venue of proceeding

The form of proceeding for judicial review is the spe-

cial statutory review proceeding relevant to the subject

matter in a court specified by statute or, in the absence

or inadequacy thereof, any applicable form of legal action,

including actions for declaratory judgments or writs of

prohibitory or mandatory injunction or habeas corpus,

in a court of competent jurisdiction. If no special statu-

tory review proceeding is applicable, the action for judi-

cial review may be brought against the United States,

the agency by its official title, or the appropriate officer.

Except to the extent that prior, adequate, and exclusive

opportunity for judicial review is provided by law, agency

action is subject to judicial review in civil or criminal

proceedings for judicial enforcement.

6. 47 U.S.C. 227 (2012 & Supp. V 2017) provide in

pertinent part:

Restrictions on use of telephone equipment

(a) Definitions

As used in this section—

> > . > >

(5) The term “unsolicited advertisement” means any

material advertising the commercial availability or qual-

5a

ity of any property, goods, or services which is trans-

mitted to any person without that person’s prior express

invitation or permission, in writing or otherwise.

(b) Restrictions on use of automated telephone equip-

ment

(1) Prohibitions

It shall be unlawful for any person within the United

States, or any person outside the United States if the

recipient is within the United States—

- oo a ae ae

(C) to use any telephone facsimile machine, com-

puter, or other device to send, to a telephone facsim-

ile machine, an unsolicited advertisement, unless—

(i) the unsolicited advertisement is from a

sender with an established business relationship

with the recipient;

(ii) the sender obtained the number of the

telephone facsimile machine through—

(the voluntary communication of such

number, within the context of such established

business relationship, from the recipient of the

unsolicited advertisement, or

(Il a directory, advertisement, or site on

the Internet to which the recipient voluntarily

agreed to make available its facsimile number

for public distribution,

6a

except that this clause shall not apply in the case

of an unsolicited advertisement that is sent based

on an established business relationship with the re-

cipient that was in existence before July 9, 2005,

if the sender possessed the facsimile machine

number of the recipient before July 9, 2005; and

(iii) the unsolicited advertisement contains a

notice meeting the requirements under paragraph

(2D),

except that the exception under clauses (i) and (ii)

shall not apply with respect to an unsolicited adver-

tisement sent to a telephone facsimile machine by a

sender to whom a request has been made not to send

future unsolicited advertisements to such telephone

facsimile machine that complies with the require-

ments under paragraph (2)(E); or

(2) Regulations; exemptions and other provisions

The Commission shall prescribe regulations to im-

plement the requirements of this subsection. In im-

plementing the requirements of this subsection, the

Commission—

(A) shall consider prescribing regulations to

allow businesses to avoid receiving calls made using

an artificial or prerecorded voice to which they have

not given their prior express consent;

7a

(B) may, by rule or order, exempt from the re-

quirements of paragraph (1)(B) of this subsection,

subject to such conditions as the Commission may

prescribe—

(i) calls that are not made for a commercial

purpose; and

(ii) such classes or categories of calls made

for commercial purposes as the Commission

determines—

(I) will not adversely affect the privacy

rights that this section is intended to protect;

and

(Il) do not include the transmission of any

unsolicited advertisement;

(C) may, by rule or order, exempt from the re-

quirements of paragraph (1)(A)iii) of this subsection

calls to a telephone number assigned to a cellular

telephone service that are not charged to the called

party, subject to such conditions as the Commission

may prescribe as necessary in the interest of the

privacy rights this section is intended to protect;

(D) shall provide that a notice contained in an

unsolicited advertisement complies with the require-

ments under this subparagraph only if—

(i) _ the notice is clear and conspicuous and on

the first page of the unsolicited advertisement;

(ii) the notice states that the recipient may

make a request to the sender of the unsolicited

advertisement not to send any future unsolicited

8a

advertisements to a telephone facsimile machine

or machines and that failure to comply, within the

shortest reasonable time, as determined by the

Commission, with such a request meeting the re-

quirements under subparagraph (E) is unlawful;

(iii) the notice sets forth the requirements for

a request under subparagraph (F);

(iv) the notice includes—

(1) adomestic contact telephone and fac-

simile machine number for the recipient to

transmit such a request to the sender; and

(Il) a cost-free mechanism for a recipient

to transmit a request pursuant to such notice

to the sender of the unsolicited advertisement;

the Commission shall by rule require the sender

to provide such a mechanism and may, in the

discretion of the Commission and subject to

such conditions as the Commission may pre-

scribe, exempt certain classes of small business

senders, but only if the Commission determines

that the costs to such class are unduly burden-

some given the revenues generated by such

small businesses;

(v) the telephone and facsimile machine num-

bers and the cost-free mechanism set forth pur-

suant to clause (iv) permit an individual or busi-

ness to make such a request at any time on any

day of the week; and

(vi) the notice complies with the require-

ments of subsection (d) of this section;

9a

(E) shall provide, by rule, that a request not to

send future unsolicited advertisements to a tele-

phone facsimile machine complies with the require-

ments under this subparagraph only if—

(i) the request identifies the telephone num-

ber or numbers of the telephone facsimile machine

or machines to which the request relates;

(ii) the request is made to the telephone or

facsimile number of the sender of such an unso-

licited advertisement provided pursuant to sub-

paragraph (D)(iv) or by any other method of com-

munication as devermined by the Commission;

and

(iii) the person making the request has not,

subsequent to such request, provided express in-

vitation or permission to the sender, in writing or

otherwise, to send such advertisements to such

person at such telephone facsimile machine;

(F) may, in the discretion of the Commission

and subject to such conditions as the Commission

may prescribe, allow professional or trade associa-

tions that are tax-exempt nonprofit organizations to

send unsolicited advertisements to their members in

furtherance of the association’s tax-exempt purpose

that do not contain the notice required by paragraph

(1C\iii), except that the Commission may take ac-

tion under this subparagraph only—

() by regulation issued after public notice

and opportunity for public comment; and

10a

(ii) if the Commission determines that such

notice required by paragraph (1)(C)(iii) is not

necessary to protect the ability of the members of

such associations to stop such associations from

sending any future unsolicited advertisements;

and

(G)i) may, consistent with clause (ii), limit the

duration of the existence of an established business

relationship, however, before establishing any such

‘imits, the Commission shal]—

(1) determine whether the existence of

ee ee

to an established business re

contol te ssetueiinean nantes afeamiiaens

to the Commission regarding the sending of

unsolicited advertisements to telephone fac-

simile machines;

(Il) determine whether a significant num-

ber of any such complaints involve unsolicited

advertisements that were sent on the basis of

an established business relationship that was

longer in duration than the Commission be-

lieves is consistent with the reasonable expec-

tations of consumers;

(III) evaluate the costs to senders of dem-

onstrating the existence of an established busi-

ness relationship within a specified period of

time and the benefits to recipients of estab-

lishing a limitation on such established busi-

ness relationship; and

lla

(IV) determine whether with respect to

small businesses, the costs would not be unduly

burdensome; and

(ii) may not commence a proceeding to deter-

mine whether to limit the duration of the exist-

ence of an established business relationship be-

fore the expiration of the 3-month period that

begins on July 9, 2005; and

(H) may restrict or limit the number and dura-

tion of calls made to a telephone number assigned to

a cellular telephone service to collect a debt owed to

or guaranteed by the United States.

7. 47 U.S.C. 402(a) provides:

Judicial review of Commission’s orders and decisions

(a) Procedure

Any proceeding to enjoin, set aside, annul, or 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.