Supreme Court Hears Arguments in Junk Fax Case
The Supreme Court heard argument Monday on whether it should affirm an appellate court ruling that a litigant in a private junk fax lawsuit can't attack validity of an FCC order that could have been challenged under the Hobbs Act…
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when issued. The U.S. solicitor general urged the Supreme Court to affirm (see 1902150058) the appellate court’s order, in PDR Network v. Carlton & Harris Chiropractic, No. 17-1705. PDR claimed a 4th U.S. Circuit Court of Appeals Hobbes Act ruling effectively stripped a district court of jurisdiction to review an FCC "unsolicited advertisement" decision under the Telephone Consumer Protect Act (see 1901090045). Carlton & Harris sued PDR after receiving a fax advertising a digital version of a physician's reference book. The most “startling comment” in the 4th Circuit's opinion in this case is, "We need not harmonize the FCC's rule with the underlying statute,” said Carter Phillips, who argued the case for PDR. “I would have thought, in any ordinary instance of judicial review of administrative agency decision-making, that's a statement that ought to leap out off the page,” he said, according to the official transcript. Justices appeared skeptical of PDR’s arguments. “Isn't it enough that you can seek reconsideration of the FCC determination prior to the application of the order to you?” asked Chief Justice John Roberts. “Presumably, the agency will deny it, but then you'd get judicial review at that point.” PDR could “go to the agency” and say “we don't think we're violating your order,” said Justice Sonia Sotomayor: “'Are we or aren't we?' You could have done that.” In separate TCPA litigation, the 9th Circuit reversed a lower court's summary judgment in favor of defendant student loan guarantor USA Funds. The 9th Circuit ruled Friday a jury could hold the guarantor vicariously liable for alleged TCPA violations by debt collectors it hired, given questions about whether USA ratified the debt collectors' calling practices (docket 17-55373). The court remanded the case to District Judge Janis Sammartino of San Diego for further TCPA proceedings. Judge Dorothy Nelson wrote the opinion, joined by Judge William Fletcher; Judge Jay Bybee dissented, disagreeing whether there was a material issue of fact about ratification.