On January 15, amicus briefs were filed in the much awaited Telephone Consumer Protection Act (“TCPA”) case currently before the Supreme Court, PDR Network LLC, et al. v. Carlton & Harris Chiropractic.  Following filing of PDR Network’s opening brief, which we discussed here, four amici filed briefs: State and Local Government Associations; the states of Oklahoma, Indiana, Louisiana, Nebraska, Texas, and West Virginia (the “States”); the U.S. Chamber of Commerce; and, finally, University of Virginia School of Law professor Aditya Bamzai.  Notably, all amici filed briefs at least partially supporting PDR Network’s position that the Fourth Circuit incorrectly interpreted the Hobbs Act to deprive the district court of jurisdiction to review PDR Network’s TCPA-based defenses. 

The Position of the States and the State and Local Government Associations

The State and Local Government Associations and the States (collectively, the “State Amici”) supported the district court’s rationale which held that an unsolicited free e-book fax sent by a major health information provider must have a commercial goal to be considered an advertisement under the plain, statutory language of the TCPA.  In dismissing the case, the district court declined to defer to a 2006 Rule promulgated by the FCC that interpreted the term “unsolicited advertisement.”  The Fourth Circuit overruled this decision, affirming that the goal of the Hobbs Act is to ensure the TCPA has a single, nationwide meaning and not divergent meanings depending on what a particular court might say.  This conclusion, the State Amici argued, went against the very purpose of the Hobbs Act.

The State Amici further argued that the Fourth Circuit’s interpretation of the Hobbs Act – specifically, that the Act deprived district courts of jurisdiction to consider the validity of orders like the 2006 FCC Rule on unsolicited advertisements – would result in problematic constitutional concerns, including separation of powers, federalism, and due process issues.  Taken together, the State Amici argued that these impacts would be costly for corporate defendants as well as state and local governments.

The Position of Professor Bamzai

Professor Bamzai, on the other hand, addressed a singular argument: that the Fourth Circuit’s decision was mistaken because, under the Hobbs Act, district courts can interpret statutes, notwithstanding a prior agency interpretation such as the FCC’s 2006 Rule, where the regulation is merely interpretive.  In other words, Bamzai’s amicus brief avers that the district court did not determine the validity of the FCC’s 2006 Rule by disagreeing with the FCC’s interpretation and should therefore be upheld under the Hobbs Act.  This argument echoed the alternative path proffered by PDR Network in its opening brief. 

The Position of the U.S. Chamber of Commerce

Finally, the U.S. Chamber of Commerce filed an amicus brief supporting neither PDR Network nor the respondent, Carlton & Harris Chiropractic.  Splitting the baby, the U.S. Chamber of Commerce argued that the Fourth Circuit was both correct in its holding that the Hobbs Act requires certain procedures for reviewing agency orders, and that it erred when it curtailed private defendants’ due process rights to challenge regulations enforced against them, especially in TCPA cases.  By taking on this seemingly divergent position, the U.S. Chamber asserted that the Hobbs Act is necessary to protect regulatory certainty and national uniformity as designed by Congress.  With that in mind, however, the U.S. Chamber further argued that businesses have a due process right to defend themselves, including by making arguments about the reach and authority of agency rules.  Discussing the state of TCPA litigation across the country, the U.S. Chamber stated:

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 innocent 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… TCPA defendants should be able to contest the validity of imprecise or outdated obligations that plaintiffs seek to apply to them.

Ultimately, the U.S. Chamber of Commerce’s amicus brief affirmed that private defendants’ due process rights should be protected along with upholding the regulatory certainty and national uniformity promoted by the Hobbs Act.

Taken together with PDR Network’s opening punch, these briefs portend that the fight for interpretation of the TCPA is just beginning.