TCPA Blog contributor Justin Kay is quoted in a Law360 article entitled “High Court May Upend TCPA Litigation Landscape” addressing the Supreme Court’s decision to grant the defendant’s petition for certiorari in PDR Network, LLC v. Carlton & Harris Chiropractic, Inc.—a TCPA fax case.
The defendant in PDR sought certiorari on two issues: one related to the interplay of the Hobbs Act and the Supreme Court’s decision in Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) and the second related specifically to the TCPA’s fax regulations. The Supreme Court granted the petition as to the first question only: Whether the Hobbs Act required the district court in this case to accept the FCC’s legal interpretation of the Telephone Consumer Protection Act. The answer to that question could have reverberations well beyond the TCPA.
Recently appointed Justice Kavanaugh previewed his view on this question in last year’s Bais Yaakov of Spring Valley v. FCC decision, which also addressed the TCPA’s fax regulations, the scope of the FCC’s authority, and implicated Chevron. With regard to these similarities, Justin noted that “after initially waiving their right to respond, but then being specifically asked by the Supreme Court to file a response, some of those same plaintiffs’ attorneys [who sought a petition for certiorari challenging the Bais Yaakov decision] filed an opposition to the petition for certiorari [in PDR], making similar arguments to those made in Bais Yaakov — that courts should not use step one of Chevron to sidestep agency interpretations of the regulations they are asked to implement.”
Justin also addressed the challenge for the FCC in addressing the specific question presented: “On the one hand, Chairman Pai has stated repeatedly — and specifically in the context of Bais Yaakov and TCPA fax regulations — that the FCC under his watch will ‘strive to follow the law and exercise only the authority that has been granted to [it] by Congress.’” “But on the other hand, it is not hard to imagine Chairman Pai and the FCC pushing back on the ability of district courts to side-step the FCC’s interpretations using Chevron.”