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 United States

PDR NETWORK, LLC, et ai.,

vz.

CARLTON & HARRIS CHIROPRACTIC, INC.,

Respondent.

On Warr or Certiorari To THE Unrrep States

Court or APPEALS ror THE Fourtnu Cracurr

———————— loIUIyILlLl==—————=€=@aRamRNe—cxcqu=_{_=__a==_=__—_————————

BRIEF OF THE U.S. CHAMBER OF

COMMERCE AS AMICUS CURIAE IN

SUPPORT OF NEITHER PARTY

_————————————————

DarRyYL JOSEFFER Mecan L. Brown

Micuak. B. Scuon Counsel of Record

U.S. Cuamper Lirication Center Bert W. Rew

1615 H Street, NW Jeremy J. Brocai

Washington, DC 20062 Wes.ey E. Weexs

(202) 463-5337 Witey Rew LLP

1776 K Street NW

Washington, DC 20006

(202) 719-7000

mbrown@wileyrein.com

Counsel for Amicus Curiae

COUNSEL PRESS

(WOO) 274 3KZ1 + (BOO) 360 6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS. ............00cccccccceee

TABLE OF CITED AUTHORITIES .............. ii

INTEREST OF AMICUS CURIAE ............. ++. 1

SUMMARY OF THE ARGUMENT................ 2

EERSTE eee nn ae 1

I. THE COURT SHOULD PROTECT

THE NATIONAL UNIFORMITY AND

RELIANCE INTERESTS PROMOTED

A. The Hobbs Act Channels Review

Of Covered Agency Orders To A

Single Court of Appeals Within A

B. The Hobbs Act Promotes National

Uniformity And Predictability, Which

Fosters Substantial Reliance By

il. THE COURT SHOULD ALSO PROTECT

PRIVATE DEFENDANTS’ DUE

PROCESS RIGHT TO CHALLENGE

REGULATIONS ENFORCED

AGAINST THEM, PARTICULARLY

Bee DEER GMEEED ovcccccccccccccccccescccs

GED oc ecvccccceccsvacscccbeccsuccesss

i

TABLE OF CITED AUTHORITIES

CASES

ACA International v. FCC,

885 F.3d 687 (D.C. Cir. 2018) ..............65606- 2

Bais Yaakov v. FCC,

Brodsky v. HumanaDental Insurance Co.,

910 F.3d 285 (7th Cir. 2018)... ... 2.2.6.6 e cece eee 5

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

606 F.3d 443 (7th Cir. 2010). ........ 2.6.46. 8, 9, 11

Edison Electric Institute v. ICC,

969 F.2d 1221 (D.C. Cir. 1992) ...........620eeene 5

Emanuel v. Los Angeles Lakers, Inc.,

No. 12-ev-9936, 2013 WL 1719035

(C.D. Cal. Apr. 18, 2018)..........000ccccceeeeee 14

it

Cited Authorities

Far East Conference v. United States,

342 U.S. 570 (1952)... 2. eee eee

470 U.S. T29 (1985)... 6... eee eee

Fritach v. ICC,

59 F.3d 248 (D.C. Cir. 1995) ..........

Functional Music, Inc. v. FCC,

274 F.2d 543 (D.C. Cir. 1958)... .......

Gragg v. Orange Cab Co.,

995 F. Supp. 2d 1189 (W.D. Wash. 2014)

Henderson v. Shinseki,

562 U.S. 428 (2011)... . 2... eee eee

Holt v. Facebook,

No. 16-cv-02266, 2017 WL, 1100564

(N.D. Cal. Mar. 19, 2017) .............

w

Cited Authorities

ICC v. Brotherhood of Locomotive Engineers,

GE TE, Bee Gree ws cc cccccccccvcccccceces

Leyse v. Clear Channel Broadcasting, Inc.,

545 F. App’x 444 (6th Cir. 2013) .............

Lindsey v. Normet,

Ge Tn 0 oc ce cescctecccncsccsces

Mais v. Gulf Coast Collection Bureau, Inc.,

768 F.3d 1119 (11th Cir. 2014) ...............

Perez v. Mortgage Bankers Ass'n,

136 S. Ct. 1199 (2015)... . 2... eee eee eee

Port of Boston Marine Terminal Ass'n v.

nye p anti

Rederiaktiebolaget

fF 0

Raitport v. Harbour Capital Corp.,

312 F. Supp. 3d 225 (D.N.H. 2018) ...........

Reytblatt v. NRC,

105 F.3d 715 (D.C. Cir. 1997)... .............

Simmons v. ICC,

PP Ee 6 cb bcc ccecedecescocecess

Cited Authorities

Page

Stone v. INS,

i IT ER EE Te a 5

United States v. Dunifer,

219 F.3d 1004 (9th Cir. 2000) .................... i)

Weaver v. Federal Motor Carrier

Safety Administrati

ee ee EE, GE ID, owe ccccccceccecsces 13

Ez parte Young,

i a ome 11

STATUTES & LEGISLATIVE MATERIALS

se ce ee euaeeusensseeboauad 5

ET PS ee ee be 4,10

Te ee i tiackubaauel 5

ag Ed cc tceceaabubies 5

i rn a ell i ae 10

de a ee ee eh ene meued 4

Administrative Orders Review Act, 64 Stat. 1129

CEC Cel. Le ceussshennnetteretone 4

vt

Cited Authoriti

Providing for the Review of Orders of Certain

Agencies: Hearing Before the H. Subcomm.

No. 2, 81st Cong. 65 (1949) (statement of

the Hon. Orie L. Phillips, Chief Judge of

the 10th Circuit Court of Appeals)............

Page

REGULATIONS & ADMINISTRATIVE MATERIALS

SE EE hed cncenniccsnscesiosavesvins

In re Business Data Services in an Internet

Protocol Environment, 32 FCC Red. 3459

GD Sec biccessceuvevesuccescacedvetsecee

Comments of CSX Transportation, Inc., Jn

re Compe-ition in the Railroad Industry,

STB Ex Parte No. 705 (filed Apr. 12, 2011)... ..

FCC, Equipment Authorization (last

visited Jan. 15, 2019), https://www.fec.

gov/engineering-technology/laboratory-

division/general/equipment-authorization ... . .

OTHER AUTHORITIES

U.S. Chamber, TCPA Litigation Sprawl: A

Study of the Sources and Targets of Recent

TCPA Lawsuits (Aug. 2017) .................

1

INTEREST OF AMICUS CURIAE'

The Chamber of Commerce of the United States

of America is the world’s largest federation of business

organizations and individuals. The Chamber has 300,000

direct members and indirectly represents more than

three million businesses of every size, in every sector, and

from every geographic region of the country. One of the

Chamber's primary missions is to represent the interests

of its members by filing amicus briefs in cases involving

issues of national concern to American business.

The Chamber and its members have two important

interests in this case. First, many of the Chamber’s

members are regulated by the federal administrative

agencies whose final orders are reviewable under the

Hobbs Act. These members rely on the regulatory

certainty and national uniformity promoted by the system

of orderly court of appeals review established by Congress

in that law.

Second, businesses that are sued for purported

violations of agency regulations—by the agency itself or by

a private party acting as a private attorney general—have

a strong interest, rooted in due process, in being able to

the reach and authority of agency rules.

1. No counsel for any party authored this brief in whole or in

part, and no person or entity other than the Chamber, its members,

or its counsel made a monetary contribution intended to fund the

preparation or submission of this brief. The parties have consented

to the filing of this brief by express written consent.

2

This is particularly salient in vexatious litigation

under the Telephone Consumer Protection Act (““T'CPA”).

The TCPA has turned into a breeding ground for lawsuits

by serial plaintiffs and lawyers who have made lucrative

businesses out of targeting legitimate activities by U.S.

companies. Class actions seek to exploit the statutory

damages of $500 to $1,500 per communication to seek

millions and billions in damages. TCPA lawsuits are a

cottage industry and a scourge on legitimate businesses—

from small restaurants to the L.A. Lakers to sellers of

generic drugs—who have little warning that reasonable

See, e.g., Bais Yaakov v. FCC, 852 F.3d 1078 (D.C. Cir.

2017) (Kavanaugh, J.) (“Let that soak in for a minute: Anda

was potentially on the hook for $150 million for failing to

include opt-out notices on faxes that the recipients had

given Anda permission to send.”), cert. denied, 138 S. Ct.

1043 (2018)). The Chamber has taken an active role in

defending businesses both at the Federal Communications

Commission and ir court. See, e.g., ACA Intl v. FCC, 885

F.3d 687 (D.C. Cir. 2018). Businesses should not be barred

from defending themselves when an agency order is used

in litigation to purportedly subject them to enormous

damages.

SUMMARY OF THE ARGUMENT

Congress exercised its authority over the jurisdiction

of the federal courts to foreclose challenges to the

“validity” of final orders covered by the Hobbs Act, except

through direct review in a court of appeals within a 60-

day timeframe. This regime generally prevents repeated

challenges to agency action and promotes regulatory

certainty and uniformity on which regulated entities

3

substantially rely in ordering their operations. When

agencies develop regulations after notice and comment and

those regulations are either vindicated on judicial review

or not challenged at all, the regulated community relies

on them. Every day, American businesses make decisions

that respond to and rely on agency determinations —

their legal rights and obligations. Those

protected by a robust application of the Hobbs Act that

channels judicial review and limits collateral attacks.

Equally important, due process requires that private

defendants in litigation to enforce agency rules be able

to challenge the reach and basis of those rules. When

agency rules are to be enforced against a party by the

government, the defendant must be able to mount a

defense that includes challenging the basis for the rule

being applied to it. The same logic protects defendants

when rules are being enforced by private actors, such as

in class actions or private attorney general suits. This

is particularly the case under the TCPA, where private

defendants are subjected to unpredictable liability based

upon alleged violations that stray far from congressional

goals and reasonable regulatory implementation. See

U.S. Chamber, TCPA Litigation Sprawl: A Study of the

Sources and Targets of Recent TCPA Lawsuits (Aug.

2017), available at https-//www.instituteforlegalreform.

com/uploads/sites/1/TCPA_Paper_Final.pdf.

4

ARGUMENT

I. THE COURT SHOULD PROTECT THE

NATIONAL UNIFORMITY AND RELIANCE

INTERESTS PROMOTED BY THE HOBBS ACT.

A. The Hobbs Act Channels Review Of Covered

Agency Orders To A Single Court of Appeals

Within A Specified Timeframe.

Direct review of final orders of seven regulatory

agencies—the Federal Communications Commission,

Department of Agriculture, of Transportation,

Federal Maritime Commission, Nuclear Regulatory

Commission,’ Surface Transportation Board, and

Department of Housing and Urban Development—is

governed by the Administrative Orders Review Act, 64

Stat. 1129 (1950), codified at 28 U.S.C. §§ 2341-2352,

commonly known as the Hobbs Act.

The form of judicial review specified by the Hobbs Act

has several distinctive features. First, the Hobbs Act vests

“exclusive jurisdiction” in the federal “court of appeals

. . . to enjoin, set aside, suspend (in whole or in part),

or to determine the validity of all final orders” covered

by the Act. 28 U.S.C. § 2342. This “basic congressional

choice” obligates a court of appeals to determine

“whether the action passes muster under the appropriate

2. Actually, the Hobbs Act specifies the Atomic Energy

Commission. 28 U.S.C. § 2342(4). The relevant functions of that

agency were transferred to the Nuclear Regulatory Commission,

and review is now taken from the NRC. See 42 U.S.C. § 5841;

Reytblatt v. NRC, 105 F.3d 715, 720 (D.C. Cir. 1997).

5

[Administrative Procedure Act] standard of review.” Fla.

Power & Light Co. v. Lorion, 470 U.S. 729, 741, 744 (1985).

Second, the Hobbs Act establishes venue “in the

judicial cireuit in which the petitioner resides or has its

principal office, or in the United States Court of Appeals

for the District of Columbia Circuit.” 28 U.S.C. §§ 2343,

2344. This provision, operating in conjunction with the

judicial lottery and first-to-file rule established by 28

U.S.C, § 2112, ensures judicial review is consolidated in a

single court of appeals when multiple petitions for review

are filed. See, e.g., Brodsky v. HumanaDental Ins. Co., 910

F.3d 285, 289 (7th Cir. 2018) (explaining interaction of the

Hobbs Act with 28 U.S.C. § 2112).

Third, the Hobbs Act requires petitions for review to

be filed “within 60 days” of the order’s entry. 28 U.S.C.

§ 2344. The lower courts “have uniformly held that the

Hobbs Act’s 60-day time limit . . . is jurisdictional.”

Henderson v. Shinseki, 562 U.S. 428, 437 (2011); ef

Stone v. INS, 514 U.S. 386, 405 (1995). This jurisdictional

constraint limits the timing of petitions seeking direct

review and generally prevents collateral attacks on

previously promulgated orders. See ICC v. Bhd. of

Locomotive Eng’rs, 482 U.S. 270, 278 (1987); FCC v. ITT

World Comme'ns, Inc., 466 U.S. 463 (1984). Litigants have

options, even after the Hobbs Act period, in which to bring

substantive challenges to agency rules.’

3. After the Hobbs Act period expires, persons aggrieved by

agency rules may “filfe] a petition for amendment or rescission of

the agency's regulations, and challeng{e] the denial of that petition”

in the court of appeals. See Edison Elec. Institute v. ICC, 969 F.2d

1221, 1229 (D.C. Cir. 1992) (citation omitted). If collateral litigation

is pending, the district court has discretion to hold its proceedings

6

B. The Hobbs Act Promotes National Uniformity

And Predictability, Which Fosters Substantial

Reliance By Regulated Communities.

The “far-reaching procedural effects” of the Hobbs

Act serve several important purposes. See Simmons v.

ICC, 716 F.2d 40, 44 (1983) (Scalia, J.).

First, and of great importance to the business

community, the Hobbs Act protects important reliance

interests that are vital to the national economy. Businesses

participate in agency regulatory proceedings in hopes of

influencing rules and orders. They often participate in

judicial review of agency orders to protect their interests

and present arguments. Once rules are final, businesses

build their operations, policies, and products around

relationships.

protected by the Hobbs Act can range from the build out

and operation of national telecommunications networks, to

the establishment of international maritime agreements,

to compliance plans for Railroad Retirement Board

obligations applicable to rail carriers.

in abeyance pending the agency’s resolution of a relevant petition.

See, ¢.g., Raitport v. Harbour Capital Corp., 312 F. Supp. 3d

225, 227 (D.N.H. 2018) (holding proceeding in abeyance pending

outeome of Bais Yaakov, 852 F.3d at 1078). District courts also

can proactively facilitate agency engagement and revision of rules

through primary-jurisdiction referrals. See Port of Bos. Marine

Terminal Ass'n v. Rederiaktiebolaget Transatlantic, 400 U.S.

62, 68-69 (1970).

7

A few examples illustrate the investment built on

regulatory determinations. When the FCC by rule

next-generation fiber facilities from its network

responded with millions of dollars in new investment

supporting fiber deployments that vastly increased

the number of households with broadband internet

connections. See In re Bus. Data Servs. in an Internet

Protocol Env't, 32 FCC Red. 3459 15 n.15 (2017). Similarly,

railroads, shippers, and other participants in the surface

transportation marketplace indicate that their capital

investment decisions reflect substantial reliance and

investment-backed expectations with regard to rates and

other regulations adopted by the Surface Transportation

Board. See, e.g., Comments of CSX Trans., Inc., /n re

Competition in the Railroad Industry, STB Ex Parte

No. 705 (filed Apr. 12, 2011).

Manufacturers of communications equipment and

other regulated devices design their products in reliance

on FCC rules about certifications and conformity with

disability access and other requirements. See FCC,

Equipment Authorization (last visited Jan. 15, 2019),

https://www.fee.gov/engineering-technology/laboratory-

division/general/equipment-authorization. Likewise,

telecommunications carriers and investors base strategies,

corporate structures, and long-term investment decisions

on regulations applicable to non-U.S. ownership, spectrum

use, and build out requirements, see, ¢.g., 47 C.F_R.

§ 63.11, which are often in place for years because these

substantial investments must have a long time-horizon.

Disruption of agency rules by district courts in collateral!

litigation long after they are final would be markedly

8

unfair to defendants and substantially harm the reliance

interests of regulated communities.

The channeling features of the Hobbs Act ensure

that regulatory changes will normally occur only after

consideration by the agency and review by a court of

appeals. This orderly process helps to ensure that the

aforementioned “serious reliance interests” are “taken

into account” when an agency changes position. See Perez

v. Mortg. Bankers Ass'n, 135 8. Ct. 1199, 1209 (2015); FCC

v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009).

Respect for reliance interests also prevents the “unfair

surprise” that can result when an interpretive change

during district court litigation results in “potentially

that interpretation was announced.” Christopher v.

SmithKline Beecham Corp., 567 U.S. 142, 155—56 (2012).

Where rules promulgated by Hobbs Act agencies are

subject to enforcement through private rights of action,

for example, potential defendants must be able to rely on

agency orders to show that their conduct was lawful. See,

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

443, 446 (7th Cir. 2010) (affirming summary judgment

where regulatory exemption provided “a comple.e defense”

to enforcement); Leyse v. Clear Channel Broad., Inc., 545

F. App’x 444, 445 (6th Cir. 2013) (affirming dismissal under

similar circumstances). Otherwise, defendants could be

found liable where an agency “did not think the industry's

practice was unlawful” and its regulations reflected that

position. Christopher, 567 U.S. at 158.

Second, the Hobbs Act promotes national uniformity.

It “allows ‘uniform, nationwide interpretation of the

9

federal statute by the centralized expert agency” followed

by consolidated court of appeals review. See Mais v. Gulf

Coast Collection Bureau, Inc., 768 F.3d 1119 (11th Cir.

2014) (quoting CE Design, 606 F.3d at 450). This scheme

prevents divisions of authority that increase compliance

costs and may take years to resolve, see Nat'l Cable &

Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S.

967, 980-83 (2005), while simultaneously constraining

agency authority by guaranteeing “one review of right in

an appellate court” of final agency orders, see Providing

for the Review of Orders of Certain Agencies: Hearing

Before the H. Subcomm. No. 2, 81st Cong. 65 at 112 (1949)

(statement of the Hon. Orie L.. Phillips, Chief Judge of the

10th Circuit Court of Appeals).

Concerns about national uniformity are acute in

industries with nationwide reach. Congress

for Hobbs Act review the final orders of agencies

which regulate important national interests. The

Federal Communications Commission, Department of

Transportation, Federal Maritime Commission, Surface

Transportation Board, and Department of Agriculture

regulate the channels and instrumentalities of interstate

commerce, as well as goods intended for nationwide

distribution. See, e.g., United States v. Dunifer, 219 F.3d

1004, 1008 (9th Cir. 2000) (explaining need for “uniform,

nationwide interpretation of the federal statute .. .

governing the nation’s airwaves”) (quotation marks and

citation omitted). The Nuclear Regulatory Commission

and Department of Housing and Urban Development

similarly implement policies of national concern.‘ The

4. At first glance, HUD seems like something of an outlier

in this list. But the covered orders of that agency are those issued

10

Court has long recognized the need for consistent agency

oversight in such areas. See Port of Bos. Marine Terminal

Ass'n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62,

68 (1970); Far Kast Conference v. United States, 342 U.S.

570, 574—75 (19652).

Finally, the Hobbs Act promotes judicial efficiency. It

helps “avoid the waste” of judicial resources that occurs

where a district court and court of appeals each “decide,

on the basis of the record the agency provides, whether the

action passes muster under the appropriate APA standard

of review.” Fla. Power & Light Co., 470 U.S. at TAl, 744.

By channeling review to the court of appeals, the Act also

ensures “that the Attorney General has an opportunity

to represent the interest of the Government whenever an

order of one of the specified agencies is reviewed.” See

Port of Bos., 400 U.S. at 70. These mutually reinforcing

interests are key benefits of the Hobbs Act, which this

Court should protect.

il. THE COURTSHOULD ALSO PROTECT PRIVATE

DEFENDANTS’ DUE PROCESS RIGHT TO

CHALLENGE REGULATIONS ENFORCED

AGAINST THEM, PARTICULARLY IN TCPA

CASES.

While the stability, certainty, uniformity, and

efficiency benefits of the Hobbs Act are vital, they cannot

outweigh private defendants’ due process rights. In

under section 812 of the Fair Housing Act, which are orders that

resolve charges of discriminatory housing practices after both

parties have elected to forego federal district court proceedings.

See 28 U.S.C. § 2342(6); 42 U.S.C. § 3612. Congress may have

been sensitive to costs or delays associated with requiring such

individuals to relitigate a dispute in district court.

ll

cases to enforce agency regulations, particularly TCPA

class action lawsuits manufactured by the plaintiffs’ bar,

private defendants must be able to challenge the legality

and reach of the rules.

Of course, a district court may always determine how

a rule as valid, “the court can, and must, interpret what

[the rule] says” and how it applies. App. lla; accord CE

Design, 606 F.3d at 450-51.

Beyond contesting how a rule applies, private

defendants facing enforcement of an agency rule in

litigation possess a due-process right “to present every

available defense.” Lindsey v. Normet, 405 U.S. 56,

66 (1972) (quotation marks omitted). In the context of

administrative obligations, this due process right generally

requires that defendants be able to make arguments about

the reach and authority of agency rules enforced against

them, particularly where a defendant lacked a meaningful

opportunity to participate in the agency rulemaking

proceeding. Otherwise, “one can conceive of a whole

parade of horribles headed by a circumstance in which a

party totally deprived of due process in an original agency

petition could never obtain review of the merits.” Fritsch

v. ICC, 59 F.3d 248, 252 (D.C. Cir. 1995); accord Ex parte

Young, 209 U.S. 123, 147 (1908) (“If the law be such as to

make the decision of the legislature or of a commission

conclusive as to the sufficiency of the rates, this court

has held such a law to be unconstitutional.”). A defendant

against whom litigation is brought may not have existed

at the time a regulation was promulgated, may not have

been in the relevant line of business at the time, or may not

12

have thought that a rule would be construed in a particular

way with regard to its operations.

The due process right to present every available

defense is at full foree when the government seeks to

enforce an administrative order covered by the Hobbs Act.

Where a defendant contends that application of an agency

rule will violate his constitutional rights, for example, the

court may address that issue. The Court's decision in FCC

v. Fox Television Inc., 567 U.S. 239 (2012), is illustrative.

There, two broadcasters, Fox and ABC, sought review of

enforcement orders issued in 2006 holding that certain

of their 2003 broadcasts violated the FCC’s indecency

standards. The standards had been in place since 2001,

but the agency had refined their meaning in 2004 and

applied the new meaning retroactively. The Court set

the enforcement orders aside because the underlying

standards were unconstitutionally vague “as applied.”

See id. at 258. “(T]he Commission policy in place at the

time of the broadcasts gave no notice to Fox or ABC that

[the broadcast content] could be actionably indecent.” /d.

at 254. Principles of constitutional avoidance reinforced

the conclusion.‘

The due process right to present every available

defense means that a defendant may also challenge

government enforcement as ultra vires. “[W Jhen an agency

seeks to apply the rule, those affected may challenge that

application on the grounds that it ‘conflicts with the statute

5. The indecency standards in Fox Television implicated

speech, mandating “rigorous adherence” to due process

speech.” 567 U.S. at 253-54. But the Court made clear that the

due process rationale would apply “with respect to a regulatory

change this abrupt on any subject.” See id. at 254.

13

from which its authority derives.” Weaver v. Fed. Motor

Carrier Safety Admin., 744 F.3d 142, 145 (D.C. Cir. 2014)

(collecting cases); see generally Functional Music, Inc. v.

FCC, 274 F.2d 543 (D.C. Cir. 1958). When the government

sues for violation of a statute, it necessarily puts its

administrative interpretation of the statute at issue.

Due process rights are similarly at play where

Congress authorizes private enforcement of agency

regulations in district court. In this circumstance, persons

asserting a private right of action step into the shoes of

the government. See Am. Mfrs. Mut. Ins. Co. v. Sullivan,

526 U.S. 40, 52 (1999). The due process considerations that

permit a defendant in a government enforcement action

to challenge the constitutional implications and statutory

authorization for a rule are equally strong when a private

party brings the enforcement action.

Such due process principles apply with special force in

litigation under the TCPA because the statute’s draconian

damages provisions and private right of action can be used

to impose extreme and unpredictable penalties that bear

little if any relationship to any actual harm caused to the

themselves of regulatory uncertainty and confusion in the

courts about this decades-old statute. Originally enacted

by Congress to bar certain types of invasive telemarketing,

plaintiffs have used it to foist upon unsuspecting U.S.

businesses “staggering, and potentially annihilating,

amounts of statutory damages tied to new technologies.”

U.S. Chamber, TCPA Litigation Sprawl: A Study of the

Sources and Targets of Recent TCPA Lawsuits 1 (Aug.

2017), available at https://www.instituteforlegalreform.

com/uploads/sites/1/TCPA_ Paper Final.pdf (detailing

filed cases, expansive theories, and course of unfair

14

litigation). Plaintiffs in these class action lawsuits use the

FCC’s rules and gaps in interpretations to sue legitimate

businesses for the use of new technology or for innoe»nt

missteps in marketing campaigns.‘

Defendants may face limited options in defending

themselves. TCPA litigation often involves questions of

what Congress meant to proscribe, and how the FCC has

implemented the statute. Defendant businesses and their

associations have sought clarifications and relief from

the FCC, to little avail so far, and regularly seek judicial

review of agency action when available and needed. See

ACA Int'l, 885 F.3d at 687. TCPA defendants should be able

to contest the validity of imprecise or outdated obligations

that plaintiffs seek to apply to them.

Beyond the unpredictability and unfairness of

weaponizing the TCPA against unwitting businesses,

that statute raises serious constitutional questions.

TCPA liability is imposed on communicative activities,

so it implicates core First Amendment interests. Indeed,

several courts have found the TCPA to be a regulation

of speech subject to strict scrutiny. See, e.g., Holt v.

Facebook, No. 16-cv-02266, 2017 WL 1100564 (N.D. Cal.

6. Examples of meritless TCPA suits abound. A group of

fans sued the Los Angeles Lakers for sending text messages

confirming receipt of fan-originated texts. See Emanuel v. Los

Angeles Lakers, Inc., No. 12-cv-9936, 2013 WL 1719035 (C.D.

Cal. Apr. 18, 2013). A ride-sharing service was sued for texts

confirming receipt of ride requests. See Gragg v. Orange Cab Co.,

995 F. Supp. 2d 1189, 1193 (W.D. Wash. 2014). A seller of generic

drugs was sued for failing to include opt-out notices on faxes that

Yaakov, 852 F.3d at 1078.

15

Mar. 19, 2017). Due process concerns are pronounced when

such First Amendment interests are at stake, making it

especially important to permit defendants to challenge the

rules sought to be enforced against them. See Bose Corp.

v. Consumers Union of United States, Inc., 466 U.S. 485,

486 (1984). Plaintiffs lack a similar interest because they

are not the subject of an enforcement action predicated

on a regulation.

CONCLUSION

The Court should ensure that its disposition of this

case does not undermine the regulatory certainty and

national uniformity promoted by the Hobbs Act, while

also protecting private businesses’ due process rights

to defend against unwarranted liability inflicted by the

FCC's prior interpretations of the TCPA.

Respectfully submitted,

DaryL JOSEFFER Mecan L. Brow

Micuak. B. ScHon Counsel of Record

U.S. CuampBer LivicaTion CentER Bert W. REIN

1615 H Street, NW JEREMY J. Brocci

Washington, DC 20062 Wes.ey E. Weeks

(202) 463-5337 Wiiey Rew LLP

1776 K Street NW

Washington, DC 20006

(202) 719-7000

mbrown@wileyrein.com

Counsel for Amicus Curiae

January 15, 2019