As TCPAWorld readers know, there is a big battle being fought at the highest level of the judiciary regarding jurisdictional limits imposed on courts to consider the actions of administrative agencies like the FCC.
Certain members of the Supreme Court—particularly Justice Kavanaugh—believe that the courts should have the power to pass judgment on all manner of agency action and interpretations without any level of deference. These Justices have made their opinion known in a case called PDR Resources, which was decided in the context of a TCPA case. The Court split in that ruling, determining that FCC actions might be entitled to unshakable deference under something called the Hobbs Act—we’ll get to that—but only if the ruling at issue was a final agency action.
More broadly, the Hobbs Act supposedly says that rulings by the FCC interpreting the TCPA are not subject to review or scrutiny by the lower courts. This is a big deal for a number of reasons great and small. On the smallish end, it means that rulings by the FCC regarding the scope of the statute and how consent can be obtained and revoked are binding across the country. And on the great(er) end, it means that certain totally unconstitutional things the FCC has done are not subject to review by the courts.
Now as the Czar will tell you, the TCPA is unconstitutional owing to the presence of so many content-specific exemptions within the statute—many of which were created by the FCC. Yet, courts have been refusing to strike down the statute hiding behind the Hobbs Act. Essentially, the argument is that since the Courts can’t strike down the FCC’s unconstitutional actions, they can’t strike down the TCPA either. But that just doesn’t make any sense.
Regardless, if the Hobbs Act bar goes away, so too—likely—does the entire (unconstitutional) TCPA. And that’s obviously a really big deal.
Well, the Eleventh Circuit recently handed down a decision in Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC, 982 F.3d 258, 262 (4th Cir. 2020), in which the dissent hammered the Hobbs Act and urged the Eleventh Circuit to reconsider its previous ruling in Mais in which it had held the Hobbs Act bans review of TCPA rulings by the FCC.
Mais’ viability was again challenged by VantagePoint (“VP”) in Weister v. Vantage Point AI, LLC, CASE NO. 8:21-cv-1250-SDM-AEP, 2022 WL 7026495 (M.D. Florida Oct. 12, 2022).
VP was sued by Jason Weister for 15 ringless voicemails allegedly in violation of the TCPA. VP moved for a summary judgment prior to class discovery on constitutional grounds: the TCPA “violates the First Amendment by imposing a more burdensome consent requirement for ‘advertisements or telemarketing messages’ than for other categories of communication.”
The Court denied the summary judgement motion for two reasons:
- the Hobbs Act (along with precedent thereon) clearly prevents the district court from considering the final order of the FCC as wrong as a matter of law;
- the constitutional argument even if cognizable fails.
After this, VP moved to certify an order for interlocutory appeal.
A district court can certify this if “such order involves a controlling question of law as to which there is substantial ground for difference of opinion and [if] an immediate appeal from the order may materially advance the ultimate termination of the litigation.”
VP satisfied the “controlling questions of law” requirement but failed to meet the requirement for a “substantial ground for difference of opinion”—requiring substantial doubt as to how a controlling legal issue should be decided.
This was because the Court said Mais is STILL BINDING despite questions as to its longevity or conflicting decisions from another circuit, and therefore, under that precedent in conjunction with the Hobbs Act, they could not consider a challenge to an FCC rule. There was no “substantial ground for difference of opinion” on Mais’ applicability here.
The Court went on to advise that EVEN IF, hypothetically, the Eleventh Circuit overruled Mais, the Court held VP still “fails to demonstrate a difference of opinion over the conclusion that the FCC’s heightened consent rule satisfies the First Amendment.” VP tried to create this by arguing strict scrutiny should apply here rather than intermediate, but this argument was rejected previously by the Court here and other higher courts.
Accordingly, the certification of an interlocutory appeal was denied.
If the heightened consent standard created by the FCC for marketing calls shouldn’t stand, then the lowered consent standard for non-marketing prerecorded/ATDS calls shouldn’t stand either. It was the FCC and lower courts that determined that a customer simply giving a company their number automatically gave it (implied) consent to make non-marketing and informational prerecorded and informational calls to that number, although congressional intent made clear by the text of the TCPA requires express consent for any type of prerecorded or ATDS calls to restricted numbers. What’s good for the goose is good for the gander. Bring it on.