Hobbs Act Issues Abound in TCPA Cases, Some Drawing FCC Reaction

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Appropriate application of the Administrative Orders Review Act (aka the Hobbs Act) can become a contentious issue in some TCPA cases, and in this post we highlight a few recent examples. The Hobbs Act provides exclusive jurisdiction to the federal court of appeals to determine the validity of all final orders of the Federal Communications Commission (FCC) and also specifies that any party aggrieved by a final order of an agency such as the FCC may file a petition to review the order in the court of appeals with appropriate venue within 60 days after its entry. Thus, while plaintiffs in TCPA cases may allege that aspects of the TCPA laws or FCC rules have been violated, they are not free to collaterally attack the substance of FCC rules that they have not timely challenged. The FCC is understandably concerned when plaintiffs mount an indirect challenge of the agency’s rules, in some cases so much so that the agency participates in a court proceeding.

In Gulf Coast Collection Bureau v. Mais, the district court rejected the defendant’s argument that the court was bound by a 2008 FCC ruling holding that the provision of a cell phone number may constitute prior express consent to be called using an auto-dialer. The district court determined that the Hobbs Act did not divest it of jurisdiction because the plaintiff did not seek to collaterally attack an FCC order, but instead to obtain damages for violations of the TCPA. This determination was appealed to the 11th Circuit, and the FCC on December 20, 2013, filed a motion for leave to file an Amicus Brief on the jurisdictional issue. Not surprisingly, the FCC supported the defendant’s position that, under the Hobbs Act, a district court lacks the jurisdiction to review the substance of an FCC order in a TCPA case when the plaintiff did not timely challenge the validity of that order. In other words, the FCC’s argument is that the district court cannot refuse to follow the FCC’s established construction of what the “prior express consent” requirement of the TCPA means. The FCC made the further practical point that if the district court’s decision stands, the validity of FCC orders and rules could be subject to collateral challenges in cases in which the FCC is not a party. Further, the FCC argued that it lacks the resources to monitor all private-party cases brought under the TCPA.

The FCC set forth similar arguments in a Petition for Rehearing filed with the 6th Circuit in Leyse v. Clear Channel Broadcasting in October 2012. In an unpublished November 2013 panel decision, the 6th Circuit largely agreed with the FCC’s Hobbs Act arguments, but affirmed the district court decision. The 6th Circuit panel decided that a district court has jurisdiction to consider the scope of an FCC exemption to the TCPA and whether a call fits within the exemption, but does not have jurisdiction to decide that an exemption is invalid or should be set aside on procedural grounds. The court denied the FCC’s motion to publish the November 2013 decision on January 2, 2014. The FCC also filed a letter brief at the 2d Circuit’s request in Leyse v. Clear Channel Broadcasting in April 2007, ultimately raising Hobbs Act issues in addition to addressing the issues the court requested.

Another case highlighting the relationship between the scope of court review available when confronting established agency rules is Nack v. Walberg. In May 2013, the 8th Circuit held in that case that defendants in private TCPA suits may not assert a defense based on the invalidity of the FCC’s TCPA rules unless and until the FCC has had an opportunity to rule on the questions presented. The defendant in that case then filed a Petition for Declaratory Ruling with the FCC, seeking clarification that the FCC’s opt-out requirements apply only to unsolicited faxes, and not to solicited faxes. The district court then granted a stay while the FCC considers defendant’s petition.

Two defendants in separate TCPA fax cases have since filed Petitions for Declaratory Ruling with the FCC seeking similar clarification. The District Court for the Eastern District of Missouri granted a stay in July 2013 in St. Louis Heart Center v. Forest Pharmaceuticals while the FCC considers Forest’s Petition. A motion to stay Physician’s Healthsource, Inc. v. Purdue Pharma L.P. remains pending in the District Court for the District of Connecticut. These recent Hobbs Act developments highlight that parties involved in TCPA litigation should be aware of the interplay between the FCC’s TCPA rules and the parties’ claims and defenses.