June 25, 2019

High Court Punt Plunges TCPA Suits into Greater Uncertainty

Chicago partner Justin Kay was quoted in the Law360 article titled, “High Court Punt Plunges TCPA Suits Into Greater Uncertainty,” which examines potential ramifications of the Supreme Court’s recent decision in PDR Network LLC et al. v. Carlton & Harris Chiropractic Inc.

The Court’s majority opinion did not address the merits in PDR, but rather found that the TCPA dispute should be returned to the Fourth Circuit to address two preliminary sets of questions:  Was the FCC’s pronouncement regarding the definition of an “advertisement” under the TCPA a “legislative rule” or an “interpretive rule,” and did the defendant have a prior and adequate opportunity to seek judicial review of the FCC’s pronouncement. The article notes that the opinion will likely result in additional TCPA litigation.

Justin discussed Justice Kavanaugh’s concurring opinion (in which Justices Thomas, Alito, and Gorsuch joined) in which Justice Kavanaugh explained that, while agreeing with the outcome, he would have decided the question presented on certiorari and would have concluded that the Hobbs Act does not bar a defendant in an enforcement action from arguing that the agency’s interpretation of the statute is wrong.

Justin commented on the newest justice’s prior  experience with TCPA fax regulations—his opinion overturning the FCC’s solicited fax rule in Bais Yaakov v. FCC, 852 F.3d 1078 (D.C. Cir. 2017). He was quoted as saying, “I am sure that what [Justice Kavanaugh] learned in [Bais Yaakov] about how the FCC rolled out its solicited fax regulations and the expense, turmoil, and years of litigation those caused were very much on his mind as he explained why deference to agency interpretations poses serious problems...” Justin noted, in particular, Justice Kavanugh’s statement that “the government’s interpretation of the Hobbs Act ‘blindside[s] defendants who would not necessarily have anticipated that they should have filed a facial, preenforcement challenge.’”

Full Article

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