Hilton Asks 11th Circuit to Stay TCPA Appeal, Amid Coming FCC, High Court Actions
Hilton Grand Vacations asked the 11th U.S. Circuit Court of Appeals to suspend review of a consumer's appeal in a Telephone Consumer Protection Act case. The FCC "will soon issue its position on the key question in this case --…
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what counts as an 'automatic telephone dialing system' under the [TCPA]," said Hilton's motion (in Pacer) Tuesday in Melanie Glasser v. HGV, No. 18-14499-J. A U.S. district court sided with Hilton in ruling its telemarketing calls to Glasser weren't made by an ATDS, the use of which is restricted by the TCPA. Consumer groups back her appeal (see 1901250002). "The Supreme Court will soon decide what degree of deference the Commission's decision should receive in private litigation like this case," Hilton added. To conserve resources, the 11th Circuit "should stay proceedings" until the commission and high court act, Hilton said. The FCC, which is considering the ATDS definition and other TCPA issues, declined comment Wednesday. The Supreme Court is to hear oral argument March 25 on whether the Hobbs Act required a district court, in an unsolicited fax lawsuit, to accept an FCC TCPA interpretation, and Hilton said a high court decision in PDR Network v. Carlton & Harris Chiropractic, No. 17-1705, is expected by the end of June. Carlton & Harris and the U.S. solicitor general argue that the Hobbs Act strips defendants of a right to challenge agency decisions "by requiring enforcement courts to slavishly apply legal interpretations announced in covered agency orders," said PDR's reply Monday. "Nothing in the Hobbs Act compels that disturbing and anomalous result." Others support one side or the other, while the U.S. Chamber of Commerce said businesses must be able to challenge the reach and basis of FCC TCPA decisions cited in district court litigation exposing them to large damages (see 1901160030). FCC orders are subject to U.S. appellate court review.