On March 4, the Supreme Court granted the U.S. Solicitor General’s request to take part in oral arguments in the highly anticipated Telephone Consumer Protection Act case PDR Network LLC, et al. v. Carlton & Harris Chiropractic.  The Solicitor General has requested to argue “that final orders of the Federal Communications Commission that are subject to the Hobbs Act may not be collaterally attacked by the litigants in private TCPA suits.” 

The U.S. Government’s involvement will be of note to those following a busy year of TCPA developments following the D.C. Circuit’s decision in ACA Int’l v. FCC, 885 F.3d 687 (D.C. Cir. 2018).  Notably, the Solicitor General has requested to argue in support of the FCC in PDR Network, arguing that the Hobbs Act binds courts to accept the agency’s interpretation of the telemarketing law, including the interpretation of what constitutes an “unsolicited advertisement” under the TCPA. 

The Solicitor General isn’t the only entity that contributed an opinion as to how the Supreme Court should decide this case.  As we covered here, four amici filed briefs in the case: State and Local Government Associations; the states of Oklahoma, Indiana, Louisiana, Nebraska, Texas, and West Virginia; the U.S. Chamber of Commerce; and, finally, University of Virginia School of Law professor Aditya Bamzai.  Contrary to the position of the solicitor general, these 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 involvement of the Solicitor General in this case adds more fuel to the pending TCPA fire: the FCC is expected to issue a declaratory ruling any day following the D.C. Circuit’s opinion in ACA Int’l.  Depending on the FCC’s declaratory ruling and how the Supreme Court decides the PDR Network case, there is a substantial clash primed between the Chevron doctrine, which allows courts some latitude in interpreting agency decisions, and the Hobbs Act, which requires the courts to defer to the agency, thereby affecting district courts’ ability to question FCC guidance on a range of issues under the TCPA.