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

Supreme Court brief2019

Ask Donna

What actually matters in this document.

Text

No. 17-1705

In Te

Supreme Court of the Hnited States

PDR NETWORK, LLC, et ai,

Petiti

CARLTON & HARRIS CHIROPRACTIC, INC.,

Respondent.

—

On Writ Of Certiorari To The

United States Court Of Appeals

For The Fourth Circuit

SULMANA, NEBRASKA TREAM AX

“iN SUSTOnT Gn Eaten

—~¢

MIKE HUNTER MITHUN MANSINGHANI

Genera! Solicitor Genera!

of Oklahoma Counsel of Record

MICHAEL K. VELCHIK OKLAHOMA OFFICE OF THE

Asst. Solicitor General! ATTORNEY GENERAL

313 NE Twenty-First St.

Oklahoma City, OK 73105

405-522-4392

QUESTION PRESENTED

Whether the Hobbs Act required the district court

in this case to accept the Federal Communication Com-

mission’s legal interpretation of the Telephone Con-

sumer Protection Act.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ...00.00.00.2...2..0202cccceceeeeeees i

TABLE OF AUTHORITIES ....................cccccceeeeeeeee iv

INTERESTS OF AMICI CURIAE ......................... 1

SUMMARY OF ARGUMENT ..........00.................... 3

TE 4

A. The Hobbs Act Only Applies To Direct

Challenges, Because Only Direct

Challenges “Determine The Validity

B. The Hobbs Act Does Not Apply To Inter-

pretive Rules Because They Do Not Have

The Force Of Law .......................-2-00+ _

C. Any Other Interpretation Produces In-

efficient Results, At Odds With The Pur-

pose Of The Hobbs Act .......................... 10

Il. Constitutional Avoidance Counsels Against

I Ge cnciccccitncnindnianicmnincseititiiiemansttinnianie 12

A. Reading the Hobbs Act As A Jurisdiction-

Stripping Statute Would Violate Separation

Of Powers And Undermine Federalism... 13

B. The Decision Below Would Deprive De-

fendants Of Due Process ....................... 18

TABLE OF CONTENTS — Continued

Page

C. The Decision Below Would Strip Defend-

tional And Statutory Defenses.............. 20

TABLE OF AUTHORITIES

Page

CASES

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

The tah taicdersiinicinediiriiddidintinteeataniaehealiciaaa passim

Am. Lib. Assoc. v. FCC, 406 F.3d 689 (D.C. Cir.

Trt ichenlistealicheameiceebieiiniapdcipetiiathdniada iene iaciaiaatitaahieaansmeasingl 24

Arangure v. Whitaker, No. 18-3076, 2018 WL

6614239 (6th Cir. Dec. 18, 2018)........................2-2- 14

Arlington v. FCC, 569 U.S. 290 (2013) ...................2-4. 13

Bais Yaakov of Spring Valley v. FCC, 852 F.3d

Ee 15

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

SERS ERE See ee 17,18

Bridgeview Health Care Ctr., Ltd. v. Clark, 816

eS CE ccesnncicnscsnnscnduannssesiccccneqosesscoes 24

Calderon v. Ashmus, 523 U.S. 740 (1985)..................... 8

Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663

IIT ieichschidsttelahinpnieniietiendadnenisiciesiiintiianbaisbiniatsineandeitiatipreeneeees 4

CE Design, Ltd. v. Prism Bus. Media, Inc., 606

Lk ae eee 10

Chamber of Com. of U.S. of Am. v. U.S. Dep’t of

Labor, 885 F.3d 360 (5th Cir. 2018) ........................ 14

Chaplinsky v. New Hampshire, 315 U.S. 568

Giri enithcsnhpiciineseniesehiabisiesipiiineadianacieninsdiiaeabighniimenniaimmeneies 23

Chevron U.S.A. Inc. v. Nat'l Res. Defense Council,

Inc. , 467 U.S. 837 (19B4)..............ccccccceeeeees 3, 5, 13, 14

Chrysler Corp. v. Brown, 441 U.S. 281 (1979).............. 9

TABLE OF AUTHORITIES — Continued

Page

Chrysler Corp. v. EPA, 600 F.2d 904 (D.C. Cir.

STII exchanidspibabencnpieninieehidamidediiaiineeaiinminbiigiebbieetinebesinzeberenses 19

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821)....... 25

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

at RR St ee 8

Consolo v. Fed. Maritime Comm’n, 383 U.S. 607

(aan liehicniinidethinnsceleinintiapndsiiinninidhsiaaustiiniaidiontiigiindendsensen! 6

Council Tree Inv’rs, Inc. v. FCC, 863 F.3d 237 (3d

GUIs TIT dianislseGindieeeetesehiindpiicnideniiashittietdiiabpenasidiindatigiennesesans 6

Creative Montessori Learning Ctrs. v. Ashford

Gear LLC, 662 F.3d 913 (7th Cir. 2011).................. 23

Crowell v. Benson, 285 U.S. 22 (1932) ............2.....-20-+- 12

Decker v. N.W. Envtl. Defense Ctr., 568 U.S. 597

itl ncnicinsdnenieianencininbisemmnositenentensdetnazasiamnistioatss 25, 26

EI. Du Pont De Nemours & Co. v. Smiley, 138

Be Se ini cticicietnisigandannattieniennabedahbatieanness 14

Egan v. Delaware River Port Auth., 851 F.3d 263

Se ren SIE inicisetnciishoenieiscendntiiainataniniiitientnapintntetennntente 14

kigin v. Dep't of Treasury, 567 U.S. 1 (2012).............. 20

Elonis v. United States, 135 S. Ct. 2001 (2015) ......... 23

Esquivel-Quintana v. Lynch, 810 F.3d 1019 (6th

Cir. 2016), rev’d on other grounds, 137 S. Ct.

Pe ianionctincsasipcesiantndastinieatianeditenenees 14, 27

FCC v. ITT World Commce’ns, Inc., 466 U.S. 463

Eee eeesieesicieseaacidectacciiahisintiditatiperlianiniidabdaatemeciaieiiaimbasieinis 6, 10

TABLE OF AUTHORITIES — Continued

Page

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

nT, I tuiisdensichdoussinencnsinicindsandtebeneiiaidatmmaniiibiiasintees 26

Garco Constr., Inc. v. Speer, 138 S.Ct. 1052

ital csainchiopscsvesnnetnepsnieniniadinntnidaliasiniadmaniagiginaseseeese 14

Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th

thin cncisenssinitientcianiapnettemapactiaiabaibiiatitniideplsininadicanies 13

Harrison v. PPG Indus., Inc., 446 U.S. 578 (1980)........ 20

Home Ins. Co. of New York v. Morse, 87 U.S. 445

Giira i hicnsinsulonasesionderepiniendnnecanaminneniamniiananatiiinhdenkonimens 20

Houston Post Co. v. United States, 79 F. Supp.

EE INL, SII sscentinssstosstieenicnipeucisdeentaeneneiginaiaaliinndénnenaed 9

Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478

Se I Ta citcticdlipcceniereaineininiesinteididabigeietatitiiiaialanresccanie 4

Johnson v. United States, 135 S. Ct. 2551 (2015) ......... 12

Johnson v. Williams, 133 S. Ct. 1088 (2013)................ 1

Kinsella v. United States ex rel. Singleton, 361

Se ETI vicorinsensiissttinuhinndentesnnitieitienitemtindnnimpgateenns 19

Kokkonen v. Guardian Life Ins. Co. of Am., 511

RN i 25

Lockhart v. Fretwell, 506 U.S. 364 (1993)..................... 1

Mais v. Gulf Coast Collection Bureau, Inc., 768

F.3d 1110 (116i Cir, BO14).......ccccccccecsccccoccccscocccees 8, 10

Manuel v. NRA Group LLC, 722 Fed. App’x 141

a te 7

Marbury v. Madison, 5 U.S. (1 Cranch) 137

vii

TABLE OF AUTHORITIES — Continued

Page

Marsh v. J. Alexander’s LLC, 905 F.3d 610 (9th

ESR SE RARE Se cere Oa A ae ne ec er 14

Massachusetts v. EPA, 549 U.S. 497 (2007)................ 25

Michigan v. EPA, 135 S. Ct. 2699 (2015) ................... 13

Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368

RSS SES ane SY ire eee aa n> eaenee en ee 1, 16, 25

Multistar Indus., Inc. v. U.S. Dep’t of Transp. , 707

4 SE eee i)

Mutual Pharm. Co. v. Bartlett, 570 U.S. 472

RRP ae ane OE ee 23

N.L.R.B. Union v. Fed. Labor Relations Auth.,

834 F.3d 191 (D.C. Cir. 1987) ...............2...02000000 20, 26

Nat1 Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617

ITI iissnnicitihisibesilaeeeiiilat eatin ties 2, 10, 25

Neustar, Inc. v. FCC, 857 F.3d 886 (D.C. Cir.

EE SESE SII SE OLN LOLA Le Oe 10

Osorio v. State Farm Bank, F.S.B.,'746 F.3d 1242

ee Hi ctisniissnhtnnttninnsitasimncarsinigndenntintetnigeeress 4,7

Our Country Home Enters., Inc. v. Comm’r of In-

ternal Revenue, 855 F.3d 773 (7th Cir. 2017) ......... 14

Patchak v. Zinke, 138 S. Ct. 897 (2018)...................... 17

Pereira v. Sessions, 138 S. Ct. 2105 (2018)................. 13

Perez v. Morg. Bankers Assoc., 135 S. Ct. 1199

ine ccutinicnusdeuscntndnenteetinbacsdesuniedinninestpeaveiited 9, 13, 16

Plaut v. Spendthrift Farm, Inc., 514 US. 211

NRE SS RENTER se Ue Coe 18

ese

TABLE OF AUTHORITIES — Continued

Page

Reno v. Am. Civ. Liberties Union, 521 U.S. 844

IIT csiaiceciisciasliciaticensdbesibaleattinsiibiaeniniacnaiteshicliahaiakdidieaiaiiman 24

Robertson v. Seattle Audubon Soc’y, 503 U.S. 429

RRR Ri FMS TRO SO Oe a 17

Rochester Telephone Corp. v. United States, 307

ee TITY -iiciraniditesscittbaicitecaticeitistinipinshiniablialinidnisitsesined 9

SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348 (2018) ......... 14

S_E.R.L. v. Atty. Gen. U.S. of Am., 894 F.3d 535

II III cianiictistscinciitiaivtesntninicedisalicialioiniaaibiithidatmens 14

Sandusky Wellness Ctr., LLC v. ASD Specialty

Healthcare, Inc., 863 F.3d 460 (6th Cir. 2017)........ 10

Sandusky Wellness Ctr., LLC v. Medco Health

Sols., Inc., 788 F.3d 218 (6th Cir. 2015) .............. 4,15

Scenic Am. Inc. v. U.S. Dep’t of Transp., 138 S. Ct.

SUITE hccitetiihabninnanbabtenaddendabadbeinamnitmiiiinngintenenes 14

Shalala v. Guernsey Mem'l Hosp., 514 U.S. 87

EERE Eee aS 9

Sierra Club v. U.S. Nuclear Regulatory Comm’n,

862 F.2d I 9

Simmons v. ICC, 716 F.2d 40 (D.C. Cir. 1983)............ 19

Skidmore v. Swift & Co., 323 U.S. 134 (1944)........ 5,18

Sprint Nextel Corp. v. FCC, 508 F.3d 1129 (D.C.

SR I eiscisethccibcsamensiigsanintiescaiasinsadindauaniiastimeniitninetnntasionnnted 9

St. Joseph Stock Yards Co. v. United States, 298

ey SERIE wsscsovescnnssnctcncscnetacetetsnnnsuniennissepinessecsate 21

TABLE OF AUTHORITIES — Continued

Page

Tennessee Valley Auth. v. Hill, 437 US. 153

Eat ics:susiibiuishdinesiduiiciintniinanstehaniatiniinisiiieiuntiliainictinesitiowne 15

Tetra Tech EC, Inc. v. Wisconsin Dep’t of Revenue,

ee 14

Toler v. Oakwood Smokeless Coal Corp., 4 S.E.2d

is Se cincestidinbiciscninintnsstésenneinetiantinnstontennceressoces 8

United States v. Any & All Radio Station Trans-

mission Equip., 204 F.3d 658 (6th Cir. 2000) ......... 21

United States v. Any & All Radio Station Trans-

mission Equip., 169 F.3d 548 (8th Cir. 1999),

opinion rev'd on reh’g, 207 F.3d 458 (8th Cir.

Titi iincsienunittntinnmninetpeilinttintanneanaitinmsiaiiendninenieidionnaiais 21, 22

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

isis nibictiteasigthdeiiacatesstahiieiatlessiiegaiinaciisumdiphesiineiiatiniaanees 17

United States v. Neset, 235 F.3d 415 (8th Cir.

SU chcciiciasinsie ebieneaneimieteeniihianimaaapciaiiadataieaiaeditabeieennineeee 22

United States v. Nixon, 418 U.S. 683 (1974) .............. 15

Virginia v. Hicks, 539 U.S. 113 (2003)........................ 22

Voices for Int'l Bus. & Educ., Inc. v. N.L.R.B., 905

gy Eee 14

Williams v. Taylor, 529 U.S. 362 (2000)...................... 17

CONSTITUTIONAL PROVISIONS

ESS passim

Xena 20, 24

Se te I BT FB trccanecternnicarecnesrenenscsensounninienenaniinnts 8

TABLE OF AUTHORITIES — Continued

Page

STATUTES

28 U.S.C.

IETS GUD. . cnnscctiiinsninntinniaigdiimmninaninnatmaniiesammaliaal 3

STITT a ieniiesiienicnatecnisesiiaiahitnhiesbiciiaaiitonaineeabiiainineniaal passim

Ea ssiicticiemrotnstrncinestassanainseinaieiiiiiaedideibiiensaniaamaaliel 3, 6, 7, 19

33 U.S.C.

STITT i stiniesninneinasscnininiesanttiapicaniinienidaniadiauimaaniilind 2, 25, 26

42 U.S.C.

STITT ins, csicccsensscgupestnisesietinineidiintincudiasiumeiniineaeientaann 2

Sir sss asnsidiiescncietuginiitigatnsiemsanpinitidenninilidiaaaeldamaananne 25

EPS eae eansemew vec Se 25

47 U.S.C.

ITI ‘ehashininchrvsbsunienentinsiaumapéiiotsinnisiienimnmmmedimaiidin 1,4, 16

SEP TEITTEIE sidcicinctvenieresstniensessiipslaciceasiciasanstemagiiesdaaieemmaaidaa hail 6,8

OTHER AUTHORITIES

Aditya Bamzai, The Origins of Judicial Defer-

ence to Executive Interpretation, 126 YALE L.dJ.

ee ee scecocinenmncrcenbieniienauennensamiitieninianbimabiniontes 14

Attorney General’s Manual on the Administra-

tive Procedure Act (19477)................cccccccesseeeeeeeeseseeees 9

Brett M. Kavanaugh, Fixing Statutory Interpre-

tation, 129 Harv. L. Rev. 2118 (2016).................... 13

Diego A. Zambrano, The States’ Interest in Fed-

eral Procedure, 70 Stan. L. REv. 1805 (2018) .......... 2

J. Gregory Sidak, Does the Telephone Consumer

Protection Act Violate Due Process As Applied?,

GB PLA. Le. BR. 1668 CRBIG) ....ccccccccsceccceccescocscsscesess 23

TABLE OF AUTHORITIES — Continued

Jeffrey A. Pojanowski, Without Deference, 81 Mo.

NR ee 14

Marshall Mathers, Without Me, Tue EMINEM

PuiLip HAMBURGER, IS ADMINISTRATIVE LAW UN.

SS 14

Ropert A. KATZMANN, JUDGING STATUTES (2014)....... 14

Stuart L. Pardau, Good Intentions and the Road

to Regulatory Hell: How the TCPA Went from

Consumer Protection Statute to Litigation Night-

mare, 2018 U. I. J.L. Tecnu. & Pow’y 313.................. 5

Tue FeperaAist No. 47 (J. Madison).................... 15, 16

THomas M. Coo.ey, A TREATISE ON THE CONSTI.

TUTIONAL LIMITATIONS Wuicn Rest UPON THE

LEGISLATIVE POWER OF THE STATES OF THE

Yuri R. Linetsky, Protection of “Innocent Law-

breakers”: Striking the Right Balance in the

Private Enforcement of the Anti “Junk Fax”

Provisions of the Telephone Consumer Protec-

tion Act, 90 Nes. L. Rev. 70 (2011) ...............0.000000. 24

REGULATIONS

Rules and Regulations Implementing the Tel.

Consumer Prot. Act of 1991; Junk Fax Preven-

tion Act of 2005, '71 Fed. Reg. 25,967 (May 3,

ES eS A 5

INTERESTS OF AMICI CURIAE

Amici curiae are the States of Oklahoma, Indiana,

Louisiana, Nebraska, Texas, and West Virginia. Amici

have a sovereign interest in preserving the separation

of powers and the constitutional rights of their citizens,

both of which are implicated by this case. Amici States

have an especial interest in this case because the deci-

sion below, if affirmed, would deprive State courts of

their independent and coordinate ability to interpret

federal law in private suits brought under the Tele-

phone Consumer Protection Act (“TCPA”). See Johnson

v. Williams, 133 S. Ct. 1088, 1098 (2013). The Act spe-

cifically permits private litigants to bring suit under

the TCPA in state courts, 47 U.S.C. §§ 227(bX3) &

227(c5), which “have concurrent jurisdiction over

private suits under the TCPA.” Mims v. Arrow Fin.

Servs, LLC, 565 U.S. 368, 372 (2012). “(Nleither federal

supremacy nor any other principle of federal law re-

quires that a state court’s interpretation of federal law

give way to a (lower) federal court’s interpretation.”

Lockhart v. Fretwell, 506 U.S. 364, 376 (1993) (Thomas,

J., concurring). A fortiori, a state court cannot be bound

by a federal agency’s interpretation of a federal stat-

ute—especially where the federal statute is unambig-

uous and the agency’s interpretation is unreasonable.

The decision below threatens to upend that important

prerogative of state courts. For similar reasons, the de-

cision below also affects enforcement actions brought

by State Attorneys General as authorized by the TCPA.

47 U.S.C. §§ 227(e6), 227(g).

Finally, the States’ interests also extend to the

many other contexts to which the Hobbs Act applies.

By its own terms, the Hobbs Act’s jurisdiction-channe!l-

ing provision also applies to final orders issued by the

Atomic Energy Commission, Department of Agricul-

ture, Federal Maritime Commission, Department of

Transportation, and Surface Transportation Board—

as well as final orders under Section 812 of the Fair

Housing Act, 42 U.S.C. § 3604, which prohibits discrim-

ination in the sale or rental of housing. See 28 U.S.C.

§ 2342(2)(7). Amici States have a role to play in all of

these regulatory contexts, see, e.g., 42 U.S.C. § 3604(5),

agencies. The States are also frequently involved in

litigation conducted pursuant to analogous provisions

that preclude judicial review of agency action, such as

the Clean Water Act. See, e.g., 33 U.S.C. § 1369(b)\(1);

Nat'l Ass’n. of Mfrs. v. Dep’t of Def., 138 S. Ct. 617, 624

(2018); Diego A. Zambrano, The States’ Interest in Fed-

eral Procedure, 70 Stan. L. Rev. 1805, 1810 (2018).

SUMMARY OF ARGUMENT

The Court below raised serious constitutional con-

cerns relating to the separation of powers, due process,

the First Amendment, and federalism when it held

that the Hobbs Act, 28 U.S.C. §§ 2341 et seg., required

the district court to adopt the Federal Communication

Commission’s (“FCC”) interpretation of the TCPA—

regardless of its validity under the laws and Constitu-

tion of the United States. Pet. App. 18a. Although this

Court has previously held that courts should defer to

an agency's reasonable interpretation of an ambiguous

statute, Chevron U.S.A. Inc. vu. Nat'l Res. Defense Council,

Inc., 467 U.S. 837 (1984), this Court has never counte-

nanced an argument that any Article [II tribunal is stat-

utorily bound by an agency's interpretation of a statute,

even if the interpretation is unambiguously unlawful.

Yet that is what Respondent argues and what

the court below held. In so doing, the Fourth Circuit

has created a Hobson’s choice: either monitor the Fed-

eral Register and challenge every guidance document

within 60 days of promulgation, or forever waive any

statutory or constitutional defense to private suits. See

28 U.S.C. § 2344 (providing 60 day requirement). The

better reading of the Hobbs Act is that U.S. Courts of

Appeais have exclusive jurisdiction over direct chal-

lenges to final orders that have the force of law, but

defendants in private suits always retain the ability to

raise constitutional or statutory defenses—even if they

conflict with how federal agencies have interpreted the

relevant statutes. Any other interpretation of the

Hobbs Act would raise serious constitutional problems

and so should be avoided.

ARGUMENT

Il. The Hobbs Act Does Not Prevent State And

Federal District Courts From Independently

Interpreting Federal Statutes.

This case began like any other case an Article III

tribunal hears. Plaintiff filed a private suit against de-

fendants based on a federal cause of action under

the TCPA. See, e.g., Campbell-Ewald Co. v. Gomez, 136

S. Ct. 663, 667 (2016). The defendants argued that they

did not violate the statute, because their conduct did

not fall within the definition of “unsolicited advertise-

ment” as used in the TCPA. 47 U.S.C. § 227(b)(1XC).

The Act itself defines the term, and so do many diction-

aries. 47 U.S.C. § 227(aX(5) (defining phrase as “mate-

rial advertising the commercial availability or quality

of any property, goods, or services which is transmitted

to any person without that person’s prior express invi-

tation or permission, in writing or otherwise”). It is

hardly surprising, then, that in these cases Article III

courts have conducted a straightforward interpreta-

tion of the statute: looking to the text of the statute,

reviewing its definition, consulting various dictionar-

ies, contemplating its ordinary meaning, as well as

considering the FCC’s own interpretation. See, ez,

Sandusky Wellness Ctr., LLC v. Medco Health Sois.,

Inc., 788 F.3d 218, 221 (6th Cir. 2015); Osorio v. State

Farm Bank, F-'S.B., 746 F.3d 1242, 1257 (11th Cir.

2014); Pet. App. 24a-29a, 36a-43a. This is, after all,

the bread and butter of the judicial process. Japan

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

(1986) (“[I|nterpreting congressional legislation is a

recurring and accepted task for the federal courts.”). It

is what courts do.

It is true that the FCC has also weighed in on the

proper interpretation of this statutory phrase—as

have several scholars. Rules and Regulations Imple-

menting the Tel. Consumer Prot. Act of 1991; Junk Fax

Prevention Act of 2005, 71 Fed. Reg. 25,967, 25,973

(May 3, 2006); see, e.g., Stuart L. Pardau, Good Inten-

tions and the Road to Regulatory Hell: How the TCPA

Went from Consumer Protection Statute to Litigation

Nightmare, 2018 U. ILL. J.L. Tecnu. & Po.’y 313, 328-

330. But this Court held that the judiciary is not bound

by these interpretations, Skidmore v. Swift & Co., 323

U.S. 134, 139 (1944), and need only defer to the agency

when (1) the statute is ambiguous and (2) the agency’s

interpretation is reasonable. Chevron, 467 U.S. at 844.

The court below instead relied upon an idiosyn-

cratic interpretation of the Hobbs Act to divest the dis-

trict court of its ability to exercise its own judgment in

interpreting a federal statute—or to even apply the al-

ready-too-deferential Chevron standard to the FCC’s

proffered interpretation. But by its own terms, the text

of the Hobbs Act does not divest federal district courts

of their constitutional obligation to independently

interpret federal statutes for three reasons: (A) the

Hobbs Act only applies to direct review of agency final

orders; (B) in this case, the FCC’s interpretive rule does

not have the “force of law” and so is not reviewable; and

efficient results at odds with the statute’s purpose.

A. The Hobbs Act Only Applies To Direct

Challenges, Because Only Direct Chzl-

lenges “Determine fhe Validity Of”

Agency Rules.

The Hobbs Act vests the federal courts of appeals

with “exclusive jurisdiction” to “enjoin, set aside, sus-

pend (in whole or in part), or to determine the validity

of” certain orders. 28 U.S.C. § 2342. As this Court has

previously recognized, this requires an aggrieved party

to “bring a direct review proceeding to challenge” one

of the specified final orders in a U.S. Court of Appeals.

Consolo v. Fed. Maritime Comm’n, 383 U.S. 607, 613

(1966). After all, the plaintiff in such a suit would be

asking the federal court “to enjoin, set aside, suspend

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

that final order, and the defendant in that suit would

be the one and only party responsible for “the entry of

[the] final order reviewable under this chapter”—that

is, “[t}he action shall be against the United States.” 28

U.S.C. § 2344. No one questions that, for example, if a

litigant wishes to challenge “the FCC’s denial of [its]

rulemaking petition,” such a suit may only be brought

“in the Court of Appeals.” FCC v. ITT World Commc’ns,

Inc., 466 U.S. 463, 468 (1984) (citing 28 U.S.C. § 2342(1);

47 U.S.C. § 402(a)); see also Council Tree Inv’rs, Inc. v.

FCC, 863 F.3d 237, 240 (3d Cir. 2017) (challenging FCC

rule substance under arbitrary and capricious review).

But the Hobbs Act does not preclude a district

court from interpreting a federal statute in a private

action, even if the FCC has issued guidance on its in-

terpretation of that statute. In a private suit, neither

the plaintiff nor the defendant is asking the district

court to “determine the validity of” an interpretive rule.

Rather, both parties may stipulate that the agency val-

idly took an action expressing its interpretation of a

statute—e.g., that the FCC (or other agency) duly com-

plied with all the procedural requirements when prom-

ulgating this view. The parties simply disagree with

the agency’s interpretation of the federal statute as ex-

pressed in the document. But no one is asking the court

to order “the United States,” 28 U.S.C. § 2344, to obey

an injunctive directive, 28 U.S.C. § 2342.

This case was not a proceeding to enjoin, set aside,

annul, or suspend any order. It is rather a civil suit,

brought by a private entity (Carlton & Harris Chiro-

practic) against another private entity (PDR Network)

under a particular statute, the parties disagree about

whether the statute applies to the defendant’s actions,

and the FCC happens to have proffered an interpreta-

tion of that statute. It is therefore better characterized

as a proceeding to impose civil liability on a regulated

entity, consistent with the agency’s interpretation of a

federal statute. But as Judge Thacker noted in her dis-

sent, “the district court did not actually determine the

validity of the 2006 FCC Rule” and so “did not exceed

its jurisdiction.” Pet. App. 19a.

Indeed, other federal judges have reached the

same conclusion. As the Third Circuit recently held, a

private suit under the TCPA “does not address the va-

lidity of the FCC’s orders” and so is outside the Hobbs

Act. Manuel v. NRA Group LLC, 722 Fed. App’x 141,

144 n.5 (3d Cir. 2018); cf Osorio, 746 F.3d at 1257

(“[Wle are not called upon here to assess the order’s

validity. We are instead simply deciding whether the

FCC’s ... ruling is applicable to the present case.”).

But it is emphatically wrong to say that, “[bly refusing

to enforce the FCC’s interpretation, the district court

exceeded its power.” Mais v. Gulf Coast Collection Bu-

reau, Inc., 768 F.3d 1110, 1119 (11th Cir. 2014).

This conclusion is consistent with the daily prac-

tice of state courts across the country that as#ume

the validity of other states’ legal determinations, yet

nevertheless adjudicate whether those determinations

provide a basis for the relief requested by private par-

ties. U.S. Const. art. IV, § 1 (“Full Faith and Credit shall

be given in each State to the public Acts, Records, and

judicial Proceedings of every other State.”); see, ez.,

Toler v. Oakwood Smokeless Coal Corp., 4 S.E.2d 364,

368 (Va. 1939); cf Calderon v. Ashmus, 523 U.S. 740,

746 (1985) (assuming validity of insurance policy).

B. The Hobbs Act Does Not Apply To Inter-

pretive Rules Because They Do Not Have

The Force Of Law.

The Hobbs Act applies to “all final orders of the

[FCC] made reviewable by 47 U.S.C. § 402(a).” 28

U.S.C. § 2342(1). Section 402(a), in turn, makes review-

able “[alny proceeding to enjoin, set aside, annul, or

suspend any order of the Commission.” But to be re-

viewable, and thus subject to the Hobbs Act, the FCC’s

determination must have the “force of law.” Columbia

Broadcasting Sys., Inc. v. United States, 316 U.S. 407,

417 (1942). “Generally, administrative orders are final

and appealable if they impose an obligation, deny a

right, or fix some legal relationship as a consummation

of the administrative process.” Multistar Indus., Inc. v.

U.S. Dep’t of Transp., 707 F.3d 1045, 1052 (9th Cir.

2013) (quoting Sierra Club v. U.S. Nuclear Regulatory

Comm’n, 862 F.2d 222, 225 (9th Cir. 1988)); see, ez.,

Houston Post Co. v. United States, 79 F. Supp. 199, 202

(S.D. Tex. 1948) (conducting inquiry into “whether the

complained of interpretation of the [FCC] is or is in-

tended to be a mere expression of opinion”).

In this case, the FCC’s interpretive rule is merely

a guidance document. “Interpretive rules do not re-

quire notice and comment” and “do not have the force

and effect of law.” Shalala v. Guernsey Mem’! Hosp.,

514 US. 87, 99 (1995). As such, they “are not accorded

that weight in the adjudicatory process.” Jd. Instead,

the interpretive rules are merely “issued by [the]

agency to advise the public of the agency’s construction

of the statutes and rules which it administers.” Chrys-

ler Corp. v. Brown, 441 U.S. 281, 302 n.31 (1979) (quot-

ing Attorney General’s Manual on the Administrative

Procedure Act 30, n.3 (1947)); see also Perez v. Morg.

Bankers Assoc., 135 S. Ct. 1199, 1203-04 (2015). Alt-

hough this may be of some use to courts in ascertaining

the meaning of ambiguous statutes, this rule does not

rise to the level of having the “force of law” and so falls

outside the ambit of the Hobbs Act. See, e.g., Rochester

Telephone Corp. v. United States, 307 U.S. 125, 143-44

(1939); Sprint Nextel Corp. v. FCC, 508 F.3d 1129, 1131

(D.C. Cir. 2007). The district court in this case therefore

had jurisdiction to interpret the TCPA in the first in-

stance.

C. Any Other Interpretation Produces Inef-

ficient Results, At Odds With The Pur-

pose Of The Hobbs Act.

Everyone agrees that the purpose of the Hobbs Act

is to promote efficiency. The provision at issue “‘pro-

motes judicial efficiency, vests an appellate panel ra-

ther than a single district judge with the power of

agency review, and allows uniform, nationwide inter-

pretation of the federal statute by the centralized ex-

pert agency’ with overseeing the TCPA.” Pet. App. 7a-8a

(quoting Mais, 768 F.3d at 1119); accord Sandusky

Wellness Ctr., LLC v. ASD Specialty Healthcare, Inc.,

863 F.3d 460, 467 (6th Cir. 2017); CE Design, Ltd. v.

Prism Bus. Media, Inc., 606 F.3d 443, 450 (7th Cir.

2010); cf Nat'l Ass’n of Mfrs., 138 S. Ct. at 633 (noting

efficiency of eliminating district court review). Rathe:

than encouraging litigants to undertake costly review

in a district court before an inevitable appeal to a U.S.

Court of Appeals, Congress recognized that it would be

more efficient to let these pure questions of law be

brought in the appellate courts in the first instance.

This all remains true if application of the Hobbs Act’s

preclusive review provision remains limited to direct

challenges of legally binding rules. See FCC v. ITT

World Commce’ns, Inc., 466 U.S. at 468; Neustar, Inc. v.

FCC, 857 F.3d 886, 891 (D.C. Cir. 2017).

But the same logic does not extend to suits

brought by private parties to enforce the TCPA against

other private parties. Under the Fourth Circuit’s read-

ing, private businesses should monitor the Federal

such rules at the time they are being considered (so as

to have standing for a subsequent challenge in federal

court), then challenge them in a U.S. Court of Appeals

within 60 days—or forever waive any legal defense

in a subsequent private action. This would require

firms to undertake significant compliance operations.

It would force businesses to guess well in advance

whether a new rule could ever be applied to their fu-

ture conduct. All of this would produce massive ineffi-

ciencies at odds with the purpose of the Hobbs Act. And

as Justice Powell points out, it “is totally unrealistic

to assume that more than a fraction of the persons

and entities affected by a regulation—especially small

contractors scattered across the country—would have

knowledge of its promulgation or familiarity with or

access to the Federal Register.” Adamo Wrecking Co. v.

United States, 434 U.S. 275, 290 (1978) (Powell, J., con-

curring).

For all these reasons, this Court should not read

the Hobbs Act as abrogating the power of district

courts to entertain constitutional and statutory de-

fenses in private suits brought under the TCPA.

Il. Constitutional Avoidance Counsels Against

Respondent’s Preferred Reading Of The

Hobbs Act.

The court below held that “The Hobbs Act requires

a district court to follow FCC interpretations of the

TCPA.” Pet. App. 18a. This holding raises serious con-

stitutional concerns: (A) it violates the separation of

powers and undermines federalism by depriving fed-

eral district courts and state courts of their obligation

to “say what the law is”; (B) it violates due process by

depriving regulated entities of any meaningful oppor-

tunity to contest an agency’s interpretation of law; and

entities may be foreclosed from raising constitutional

defenses to private actions.

But this Court has consistently held that “[w|hen

a statute’s constitutionality is in doubt, we have an ob-

ligation to interpret the law, if possible, to avoid the

constitutional problem.” Johnson v. United States, 135

S. Ct. 2551 (2015); Crowell v. Benson, 285 U.S. 22, 62

(1932) (“When the validity of an act of the Congress is

drawn in question, and even if a serious doubt of con-

stitutionality is raised, it is a cardinal principle that

this Court will first ascertain whether a construction

of the statute is fairly possible by which the question

may be avoided.”); THomas M. Coo._ey, A TREATISE ON

THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON

THE LEGISLATIVE POWER OF THE STATES OF THE AMERI-

CAN UNION 74 (1868) (“A doubt of the constitutionality

of any proposed legislative enactment should in any

case be reason sufficient for refusing to adopt it.”).

Here, the statute is susceptible to an interpretation

that does not raise any constitutional issues. Supra

Part I.

A. Reading the Hobbs Act As A Jurisdic-

tion-Stripping Statute Would Violate

Separation Of Powers And Undermine

Federalism.

At this point, the serious constitutional problems

raised by rules that require courts to abdicate their

role of independently interpreting the law are well-

recognized. They have been pointed out by members of

this Court.' Judges of lower courts have repeatedly

' Pereira v. Sessions, 138 S. Ct. 2105, 2120-21 (2018) (Ken-

nedy, J., concurring) (“The type of reflexive deference exhibited in

some of these cases is troubling. . . . [I]t seems necessary and ap-

propriate to reconsider, in an appropriate case, the premises that

underlie Chevron and how courts have implemented that deci-

sion.”); Michigan v. EPA, 135 S. Ct. 2699, 2712 (2015) (Thomas, J.,

concurring) (“I write separately to note that [the agency's] request

federal statutes.”); Perez, 135 S. Ct. at 1213 (Thomas, J., concur-

ring) (“I write separately because these cases call into question

the legitimacy of our precedents requiring deference to adminis-

US. 290, "327 (2013) (Roberts, C.J., dissenting) (“We do not leave

it to the agency to decide when it is in charge.”); Gutierrez-Brizuela

v. Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J., concur-

ring) (“[T)he fact is Chevron . . . permit|s) executive bureaucracies

to swallow huge amounts of core judicial and legislative power

and concentrate federal power in a way that seems more than a

little difficult to square with the Constitution of the framers’ de-

sign.”); Brett M. Kavanaugh, Fixing Statutory Interpretation, 129

complained of them.’ “Scholarly voices have joined

the skeptical chorus as well.” Jeffrey A. Pojanowski,

Without Deference, 81 Mo. L. Rev. 1075, 1079 (2016).*

Nonetheless, this Court has postponed the question of

“whether Chevron should remain” good law. SAS Inst.,

Inc. v. Iancu, 138 S. Ct. 1348, 1358 (2018).

But if Chevron deference is bad, PDR deference is

worse. Here, the court below held that “The Hobbs Act

Harv. L. Rev. 2118, 2150-54 (2016) (reviewing Ropexr A.

KAT..MANN, JUDGING STATUTES (2014)) (discussing practical diffi-

culty of ascertaining when a statute is “ambiguous”); see also E_/.

Du Pont De Nemours & Co. v. Smiley, 138 S. Ct. 2563 (2018) (state-

ment of Gorsuch, J., respecting the denial of certiorari); Garco

Constr., Inc. vu. Speer, 138 S. Ct. 1062 (2018) (Thomas, J., dissent-

ing from denial of certiorari); Scenic Am. Inc. v. U.S. Dep't of

Transp., 138 S. Ct. 2 (2017) (statement of Gorsuch, J., respecting

the denial of certiorari).

* See, eg., Arangure v. Whitaker, No. 18-3076, 2018 WL

6614239, at *2 (6th Cir. Dec. 18, 2018); S.E.R_L. v. Atty. Gen. US.

of Am., 894 F.3d 535, 554 (3d Cir. 2018); Voices for Intl Bus. &

Educ., Inc. v. N.L.R.B., 905 F.3d 770, 780 (5th Cir. 2018); Chamber

of Com. of U.S. of Am. v. U.S. Dep't of Labor, 885 F.3d 360, 380 n.14

(5th Cir. 2018); Marsh v. J. Alexander’s LLC, 906 F.3d 610, 637 (9th

Cir. 2018) (Ikuta, J., dissenting); Our Country Home Enters., Inc.

vu. Comm'r of Internal Revenue, 855 F.3d 773, 790 (7th Cir. 2017);

Egan v. Delaware River Port Auth., 851 F.3d 263, 280 (3d Cir. 2017)

(Jordan, J., concurring); Esquivel-Quintana v. Lynch, 810 F.3d

1019, 1027-32 (6th Cir. 2016), rev'd on other grounds, 137 S. Ct.

1562 (2017) (Sutton, J., concurring in part and dissenting in part);

Tetra Tech EC, Inc. v. Wisconsin Dep't of Revenue, 914 N.W.2d 21,

48 (Wis. 2018).

* See, eg., Pune HamBuRGeER, Is ADMINISTRATIVE LAW UNLAW

FUL? (2014) (arguing “yes”); Aditya Bamzai, The Origins of Judi-

cial Deference to Executive Interpretation, 126 YALE L.J. 908, 1000

(2017) (concluding that Chevron “is an innovation” that “cannot

be squared with the text of section 706 of the APA”).

requires a district court to follow FCC interpretations

of the TCPA,” Pet. App. 18a, even if the statute is not

ambiguous, and even if the agency’s interpretation is

unreasonable. Such a rule would combine the legisla-

tive, executive, and judicial powers in one set of

hands—“the very definition of tyranny.” THE FEDERAL-

ist No. 47, at 301 (J. Madison). It would represent the

ne plus ultra of judicial deference to the administrative

state. Even in the context of national security, this

Court has “reaffirm|ed] that it is the province and duty

of this Court ‘to say what the law is.’” United States v.

Nixon, 418 U.S. 683, 705 (1974) (quoting Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 177 (1803)). “Our sys-

tem of government is, after all, a tripartite one, with

gated to it by the Constitution.” Tennessee Valley Auth.

vu. Hill, 437 U.S. 153, 194 (1978). And in this particular

case, both the district court and other courts have

found the statute to be “unambiguous” and contrary to

the FCC’s preferred interpretation. Pet. App. 39a, 42a;

Sandusky, 788 F.3d at 223. Nor is this an isolated oc-

currence; the FCC’s interpretations are frequently

“difficult to follow.” Bais Yaakov of Spring Valley v.

FCC, 852 F.3d 1078, 1082 (D.C. Cir. 2017) (Kavanaugh,

J.). The decision below therefore threatens to under-

mine the separation of powers.

The most natural reading of this statute is that

Congress intended to command litigants bringing di-

rect challenges to new FCC rules to file them in the

U.S. Courts of Appeals—for the sake of judicial econ-

omy. Nothing in the text, history, or purpose of the

statute indicates that Congress intended to deprive Ar.

ticle II] tribunals from interpreting laws before apply-

ing them to particular cases. As this Court spelled out

in Marbury v. Madison, “Those who apply the rule to

particular cases, must of necessity expound and inter-

pret that rule.” 5 U.S. (1 Cranch) at 178 (emphasis

added). “When courts refuse even to decide what the

best interpretation is under the law, they abandon the

judicial check. That abandonment permits precisely

the accumulation of governmental powers that the

Framers warned against.” Perez, 135 S. Ct. at 1221

(Thomas, J., concurring) (citing Tak FEDERALIST No. 47

(J. Madison)).

But this case implicates more than just the hori-

zontal separation of powers within the national gov-

ernment. Under the TCPA, enforcement actions may

also be brought in state courts, 47 U.S.C. §§ 227(b\3) &

227(c\5), which “have concurrent jurisdiction over pri-

vate suits under the TCPA.” Mims, 565 U.S. at 372. The

TCPA also authorizes enforcement actions by State At-

torneys General. 47 U.S.C. §§ 227(eX6), 227(g). If both

state courts and state officials must enforce the law as

interpreted by a federal agency—no matter how un-

lawful that interpretation is—serious federalism con-

cerns arise. At a minimum, it forces state courts and

officials either to be commandeered into applying the

TCPA in a potentially unlawful or unconstitutional

manner, or to get out of the business of enforcing the

TCPA at all.

The court below also erred in holding that “Con-

gress has specifically stripped jurisdiction from the

district courts regarding a certain issue, those courts

lack the power and authority to reach it.” Pet. App. 8a.

As this Court’s decisions have noted, jurisdiction-strip-

ping statutes raise serious separation of powers con-

cerns. Patchak v. Zinke, 138 S. Ct. 897 (2018); id. at 914

(Roberts, C.J., dissenting); Bank Markazi v. Peterson,

136 S. Ct. 1310, 1323 n.17 (2016); United States v.

Klein, 80 U.S. (13 Wall.) 128 (1872); cf Williams v. Tay-

lor, 529 U.S. 362, 379 (2000) (stating that “[a] construc-

tion of [a statute] that would require the federal courts

to cede [interpretive] authority to the courts of the

States would be inconsistent with the practice that fed-

eral judges have traditionally followed in discharging

their duties under Article III of the Constitution”).

To be sure, this Court has held that Congress may

amend the law during the pendency of appeals, pro-

vided it does not direct courts to enter judgment in fa-

vor of one party or another. Robertson v. Seattle

Audubon Soc’y, 503 U.S. 429, 441 (1992). And Congress

may confer or strip a court of jurisdiction over a certain

claim—as a whole. But Congress may not both grant

jurisdiction to courts (e.g. , over private suits for telecom-

munication violations) and at the same time prohibit

defenses to these suits. In other words, Congress can-

not grant a court jurisdiction to hear a statutory claim,

but then force the same court to blind itself to what the

statute actually says and instead look only to an

agency’s interpretation in enforcing the statute. Inher-

ent in the guarantee of due process is the right to have

a federal court interpret and apply a federal statute

before one private party can impose civil liability on

another. Cf Plaut v. Spendthrift Farm, Inc., 514 U.S.

211, 225 (1995). Just as everyone agrees that “Con-

gress could not enact a statute directing that, in ‘Smith

v. Jones,’ ‘Smith wins’” because “|s]uch a statute would

ticular circumstances,” Bank Markazi, 136 S. Ct. at

1323 n.17, neither may Congress direct district courts

to apply pre-existing law (here, the TCPA) to particu-

larized circumstances as decided by a federal agency

(FCC). This short-circuits the judicial process of deter-

mining in the first instance how to apply the pre-

existing law to these facts. That is why this Court has

always maintained that an agency’s views “do not con-

stitute an interpretation of [an ajct or a standard for

judging factual situations which binds a district court’s

processes, as an authoritative pronouncement of a

higher court might do.” Skidmore, 323 U.S. at 139. The

Hobbs Act, under Respondent’s view, therefore raises

novel constitutional questions about the extent to

which Congress may enact issue-stripping legislation.

B. The Decision Below Would Deprive De-

fendants Of Due Process.

This Court has previously warned of “|t|he sever-

ity” of any scheme where “persons subject to the Act,

including innumerable small businesses” must “pro-

tion only by daily perusal of . . . the Federal Register

and by immediate initiation of litigation . . . to protect

their interests.” Adamo Wrecking Co., 434 U.S. at 283

n.2. It is therefore of no moment to suggest that busi-

nesses like PDR could have or should have brought a

direct challenge against the FCC’s 2006 rule at the

time it was promulgated. For one thing, PDR and

similar businesses would likely have lacked standing.

Pet. Br. 25; see Simmons v. ICC, 716 F.2d 40, 42 (D.C.

Cir. 1983). For another, it would be exorbitantly expen-

sive to monitor the Federal Register, file direct chal-

lenges to every new rule, and guess what future

business ventures the company might pursue years or

even decades down the line—and then file suit within

60 days of the interpretive rule. 28 U.S.C. § 2344. Cf

Pet. Br. 40 (characterizing rule as a “severe form of is-

sue preclusion”). What is more, some businesses might

not even have existed at the time of the disputed rule,

making it legally impossible for them to have ever filed

a challenge in time. Such an interpretation would

“place in the hands of the” FCC the “unreviewable dis-

cretion” to interpret federal law in a manner that

would “stri[p] the [defendant] of his constitutional

rights and protections.” Kinsella v. United States ex rel.

Singleton, 361 U.S. 234, 244 (1960). “This phenomenon

raises the spectre of possible unfairness, particularly

to small manufacturers who may lack resources to

monitor the Administrator's actions to assure protec-

tion of the opportunity to contest regulations affecting

their interests.” Chrysler Corp. v. EPA, 600 F.2d 904,

912-13 (D.C. Cir. 1979).

C. The Decision Below Would Strip Defend-

ants Of The Ability To Raise Constitu-

tional And Statutory Defenses.

The absurdity of Respondent’s view is best illus-

trated by considering a corner case. Imagine that a fed-

eral agency passes an interpretive rule that on its face

discriminates on the basis of race in vivlation of the

Fourteenth Amendment or chills speech in violation of

the First Amendment. Imagine further that no regu-

lated entity challenges this interpretive statute in

court at the time it is promulgated. N.L.R.B. Union v.

Fed. Labor Relations Auth. , 834 F.3d 191, 169 (D.C. Cir.

1987) (suggesting similar hypothetical). Does this

mean that any defendant sued on the basis of violating

the law has forfeited his right to raise a constitutional

defense? We think not.

As Justice Powell explained in Adamo Wrecking

Co., a regulated entity that fails to challenge an ad-

ministrative rule within the specified timeframe

should not be deprived of later raising a constitutional

defense to its application without a court giving the

constitutional question “serious consideration.” 434 U.S.

at 290 (Powell, J., concurring); see also Harrison v. PPG

Indus., Inc., 446 U.S. 578, 594 (1980) (Powell, J., con-

curring) (repeating this concern); cf Elgin v. Dep’t of

Treasury, 567 U.S. 1, 24 (2012) (Alito, J., dissenting)

(raising similar concerns). This follows from the basic

rule that “lelvery citizen is entitled to resort to all the

courts of the country, and to invoke the protection

which all the laws . . . may afford him.” Home Ins. Co.

of New York v. Morse, 87 U.S. 445, 451 (1874). “The

supremacy of law demands that there shall be oppor-

tunity to have some court decide whether an erroneous

rule of law was applied.” St. Joseph Stock Yards Co. v.

United States, 298 U.S. 38, 84 (1936) (Brandeis, J., con-

curring).

Perhaps mindful of these concerns, at least one

federal court of appeals has explicitly recognized that

these Constitutional concerns warrant a narrow read-

ing of the Hobbs Act. In United States v. Any & All Ra-

dio Station Transmission Equip. , 204 F.3d 658 (6th Cir.

2000), the government initiated an in rem forfeiture

action against an unlicensed micro-broadcaster in an

attempt to seize equipment knowingly used to broad-

cast without a license. The defendant argued that the

FCC regulation relied upon “was an unconstitutional

prior restraint on speech” in violation of the First

Amendment. Any & All, 204 F.3d at 662, 666-67. The

district court held “that it lacked jurisdiction to enter-

tain [the defendant]’s constitutional defenses because

28 U.S.C. § 2342 |i.e, the Hobbs Act] provides that

courts of appeals have exclusive jurisdiction ‘to enjoin,

set aside, suspend ... or to determine the validity of

... all final orders of the [FCC].’” Any & All, 204 F.3d

at 667. The Sixth Circuit reversed, “for the simple

reason that no FCC order is being challenged.” Id.

(quoting United States v. Any & All Radio Station

Transmission Equip., 169 F.3d 548, 554 (8th Cir. 1999),

opinion rev'd on reh’g, 207 F.3d 458 (8th Cir. 2000)

(Arnold, J., concurring)).

In the words of Judge Arnold, “Until today I had

not supposed that anyone could plausibly maintain

that any court of the United States, properly seized of

jurisdiction of a suit, did not also have jurisdiction to

consider constitutional defenses to that suit.” Any &

All, 169 F.3d at 554 (Arnold, J., concurring), opinion

rev'd on reh’g, 207 F.3d 458 (8th Cir. 2000). Although

the Hobbs Act might govern the jurisdiction for filing

“a suit to enjoin a denial of a rulemaking petition|, njo

such petition is at issue here, and the fact that [a de-

fendant] could file one and have his defenses adjudi-

cated is of no moment.” Jd.

But not all lower courts have recognized this prin-

ciple. Compare United States v. Neset, 235 F.3d 415 (8th

Cir. 2000) (rejecting argument), with id. at 421 (Hea-

ney, J., dissenting) (“I agree with the Sixth circuit’s de-

cision ... that the district courts in this type of case

have jurisdiction to hear First Amendment challenges

to the F[CC]’s prohibition of microbroadcasting in the

context of an enforcement action filed against them.”).

It is therefore vital that this Court make clear that reg-

ulated entities do not forever lose their statutory or

constitutional rights by failing to object to agency

rules.

This basic constitutional concern is magnified

here in the context of the FCC, which regulates speech.

Historically, this Court has vigilantly guarded the

First Amendment by permitting facial challenges and

lenient standing requirements in order to counteract

the specter of speech being chilled. Virginia v. Hicks,

539 U.S. 113, 118 (2003) (“The First Amendment doc-

trine of overbreadth is an exception to our normal rule

regarding the standards for facial challenges.”). Yet

here, the court below went out of its way to deprive the

district court of any ability to second-guess the FCC’s

own interpretation of the TCPA. Pet. App. 2a. This is

especially troubling in the context of telecommunica-

tions law, as the FCC is uniquely positioned to clamp

down on disfavored speech in violation of the First

Amendment. See, e.g., FCC v. Pacifica Found., 438 U.S.

726 (1978).* The speech at issue in this case is hardly

“of such slight social value as a step to truth that any

benefit that may be derived from them is clearly out-

weighed.” Chaplinsky v. New Hampshire, 315 U.S. 568,

572 (1942). To the contrary, Petitioners are offering free

copies of a medical text—Physicians’ Desk Reference—

a document of significant social value. See, e.g., Mutual

Pharm. Co. v. Bartlett, 570 U.S. 472, 478 (2013) (relying

upon text).

What is more, federal judges have singled out the

TCPA in particular for its “draconian penalties,” Crea-

tive Montessori Learning Ctrs. v. Ashford Gear LLC,

662 F.3d 913, 915 (7th Cir. 2011) (Posner, J.), which are

so disproportionate that scholars have warned lower

courts to “take seriously the possibility that the

TCPA’s statutory damages violate the Due Process

Clause of the Fifth Amendment as applied.” J. Gregory

* As “the well-known performer Eminem,” Elonis v. United

States, 135 S. Ct. 2001, 2007 (2015), once complained:

So the FCC won't let me be,

Or let me be me, so let me see.

They try to shut me down on MTV,

But it feels so empty without me.

Marshall Mathers, Without Me, THe Eminem SHow (2002).

Sidak, Does the Telephone Consumer Protection Act Vi-

olate Due Process As Applied?, 68 FLA. L. Rev. 1403,

1412 (2016); cf Adamo Wrecking Co., 434 U.S. at 283

(emphasizing “[t]he stringency of the penalty im-

posed”). Private entities have in turn leveraged over-

broad agency interpretations to bring in terrorem suits

against small businesses in their hunt for large settle-

ments. In the words of one court of appeals, “junk-fax

litigation is best explained” as having “‘blossom[med]

into a national cow for plaintiff’s attorneys specializ-

ing in TCPA disputes’” who use it as a “means of tar-

geting small businesses” to “naill] the little guy, while

... takling] a big cut.” Bridgeview Health Care Ctr.,

Ltd. v. Clark, 816 F.3d 935, 941 (7th Cir. 2016) (quoting

Yuri R. Linetsky, Protection of “Innocent Lawbreakers”:

Striking the Right Balance in the Private Enforcement

of the Anti *Junk Fax” Provisions of the Telephone Con-

sumer Protection Act, 90 Nes. L. Rev. 70, 97 (2011)).

This Court would never countenance the notion

that courts should defer to administrative agencies

when interpreting the First or Fourteenth Amend-

ments. It is therefore vital that this Court preserve de-

fendants’ ability to raise constitutional and statutory

defenses, lest the FCC propagate rules with “obvious

chilling effect on free speech.” Reno v. Am. Civ. Liberties

Union, 521 US. 844, 872 (1997); see, e.g., Am. Lib. Assoc.

v. FCC, 406 F.3d 689, 708 (D.C. Cir. 2005) (“The FCC

argues that the Commission has ‘discretion’ to exercise

‘broad authority’ over equipment used in connection

with radio and wire transmissions, ‘when the need

arises, even if it has not previously regulated in a

particular area.’ This is an extraordinary proposi-

tion.”) (quoting FCC brief). As this Court recently

made clear in the context of the TCPA, “[flederal

courts, though ‘courts of limited jurisdiction,’ in the

main ‘have no more right to decline the exercise of ju-

risdiction which is given, than to usurp that which is

not given.’” Mims, 565 U.S. at 376 (citing Kokkonen v.

Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994);

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821)).

Nor are these concerns limited to the FCC, as the

Hobbs Act equally extends to final orders issued by the

Atomic Energy Commission, Department of Agricul-

ture, Federal Maritime Commission, Department of

Transportation, and Surface Transportation Board—

as well as final orders under Section 812 of the Fair

Housing Act. See 28 U.S.C. § 2342(2)-(7). And other

federal statutes contain similar jurisdiction-channeling

provisions, including the Clean Air Act, the Clean Wa-

ter Act, and the Comprehensive Environmental Re-

sponse, Compensation and Liability Act (CERCLA). 33

US.C. § 1369(b); 42 U.S.C. §§ 7607(b)(2), 9613(a). Amici

States frequently litigate claims under these statutes.

See, eg., Massachusetts v. EPA, 549 US. 497, 514

(2007); see also Nat'l Ass’n of Mfrs., 138 S. Ct. at 627

(discussing States’ challenges to the EPA’s Waters of

the United States rule). And in those contexts, this

Court has consistently held that jurisdiction-channel-

ing provisions do not foreclose all other forms of judi-

For example, in Decker v. N.W. Envtl. Defense Ctr.,

568 U.S. 597 (2013), this Court held that 33 U.S.C.

§ 1369(b)’s “exclusive jurisdiction mandate . . . extends

only to certain suits challenging some agency actions”

but “does not bar a district court from entertaining a

citizen suit . . . against an alleged violator . . . seek[ing]

to enforce an obligation imposed by the Act or its reg-

ulations.” Id. at 608; cf N.L.R.B. Union, 834 F.3d at 196

(noting that because “administrative rules and regula-

tions are capable of continuing application|,| limiting

the right of review of the underlying rule would effec-

tively deny many parties ultimately affected by a rule

of an opportunity to question its validity”) (quoting

Functional Music, Inc. v. FCC, 274 F.2d 543, 546 (D.C.

Cir. 1958)).

Most notably, in Adamo Wrecking Co., this Court

held that a defendant “who is charged with a criminal

violation under the [Clean Air Act] may defend on the

ground that” its conduct did not fall within the statute,

even though the agency's implementing regulation

was reviewable exclusively in the U.S. Courts of Ap-

peals. 434 U.S. at 279. The Court explained that Con-

gress “hal[d] not uniformly precluded judicial challenge

to the order as a defense in [a] criminal proceeding.”

Id. at 282.

Tk arrow inquiry to be addressed by the

court in a criminal prosecution is not whether

the Administrator has complied with appro-

priate procedures in promulgating the regula-

tion in question, or whether the particular

regulation is arbitrary, capricious, or sup-

ported by the administrative record. Nor is

the court to pursue any of the other familiar

inquiries which arise in the course of an ad-

ministrative review proceeding. The question

is only whether [the defendant’s conduct falls]

within the broad limits of the congressional

meaning of that [statute].

Id. at 285.

The Court emphasized that “the Administrator's

promulgation of the standard is not subject to judicial

review in the criminal proceeding,” and “[t)he District

Court did not presume to judge the wisdom of the reg-

ulation or to consider the adequacy of the procedures

which led to its promulgation.” Jd. at 283-84. Instead,

the district court “merely concluded that” the alleged

conduct did not fall within the statutory definition.

Id. at 284. As a result, the Clean Air Act’s exclusive re-

view provisions “d[id] not relieve the Government of

the duty of proving, in a prosecution” that the conduct

falls within the relevant statutory definition. Jd. For

the same reasons, the Hobbs Act does not relieve Re-

spondent of its burden to show that Petitioners’ con-

duct falls within the language of the TCPA.

* + *

For all these reasons, Respondent’s interpretation

of the Hobbs Act raises serious constitutional concerns

and should be rejected. The decision below threatens

to permit the administrative state to swallow up even

more of the liberties guaranteed by the separation of

powers, federalism, and due process. Although “the

time has” not yet “come to face the behemoth” of judi-

cial deference to federal agencies, Lynch, 810 F.3d at

1149 (Gorsuch, J., concurring), at the very least we

should stop feeding it.

CONCLUSION

The Court should reverse the decision below.

Respectfully submitted,

MIKE HUNTER MITHUN MANSINGHANI

Attorney General! Solicitor General

of Oklahoma Counsel of Record

MICHAEL K. VELCHIK OKLAHOMA OFFICE OF

Asst. Solicitor General THE ATTORNEY GENERAL

313 NE Twenty-First St.

Oklahoma City, OK 73105

January 15, 2019

Curtis T. Hi., JR. KEN PAXTON

Attorney General! Attorney General!

of Indiana of Texas

Jerr LANDRY PATRICK MORRISEY

Attorney General! Attorney General

of Louisiana of West Virginia

Don's PETERSON

Attorney Genera!

of Nebraska

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.