Chamber Backs Right to Contest FCC TCPA Decisions; States Also File in Fax Case
The U.S. Chamber of Commerce said businesses "must be able to challenge the reach and basis" of agency orders "used in litigation to purportedly subject them to enormous damages," including FCC Telephone Consumer Protection Act regulations. "TCPA lawsuits are a…
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cottage industry and a scourge on legitimate businesses ... who have little warning that reasonable communicative activities may generate crushing litigation," said the Chamber's Supreme Court amicus brief Tuesday backing neither side in PDR Network v. Carlton & Harris Chiropractic, No. 17-1705. "The Court should ensure that its disposition of this case does not undermine the regulatory certainty and national uniformity promoted by the Hobbs Act, while also protecting private businesses’ due process rights to defend against unwarranted liability inflicted by the FCC’s prior interpretations of the TCPA." PDR argued a 4th U.S. Circuit Court of Appeals Hobbes Act ruling in its fax case stripped a district court of jurisdiction to review an FCC "unsolicited advertisement" decision (see 1901090045). The Supreme Court hasn't validated the argument that federal courts are "statutorily bound" by an agency statutory interpretation that's "unambiguously unlawful," said Oklahoma, Texas and other states backing petitioners. "Yet that is what Respondent argues and what the court below held." That "creates a Hobson’s choice: either monitor the Federal Register and challenge every guidance document within 60 days of promulgation, or forever waive any statutory or constitutional defense to private suits," they wrote, suggesting: "U.S. Courts of Appeals have exclusive jurisdiction over direct challenges to final orders that have the force of law, but defendants in private suits always retain the ability to raise constitutional or statutory defenses -- even if they conflict with how federal agencies have interpreted the relevant statutes."