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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2019

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0834%3A15. Public record. Not legal advice.