In December, 2013, PDR sent a fax to Carlton & Harris Chiropractic offering a free Physicians’ Desk Reference. C&H did not accept the offer, and instead sued PDR for violating the Telephone Consumer Protection Act, under which consumers may sue (and recover money from) senders of unsolicited fax advertisements. PDR moved to dismiss, arguing that, because it was offering the book for free, the fax was not an unsolicited advertisement. C&H countered, citing a 2006 FCC order interpreting the term to include faxes that offer goods and services at no cost to the recipient. Under the Hobbs Act, 28 U.S.C. § 2342(1), a district court has no power to review a “final order” of the FCC interpreting the Telephone Consumer Protection Act of 1991 (“TCPA”).
The district court ruled for PDR; the 4th Circuit reversed. This month, the Supreme Court granted PDR’s petition for certiorari, limited to:
Whether the Hobbs Act required the district court in this case to accept the FCC's legal interpretation of the Telephone Consumer Protection Act. 17-1705 PDR NETWORK, LLC, ET AL. V. CARLTON & HARRIS CHIROPRACTIC
The first paragraph of PDR’s cert petition reads in part:
This case presents a challenge to the jurisdiction of every court in the nation to interpret and apply the law. A critical question, and circuit split, persists concerning the interplay between the Hobbs Act, also known as the Administrative Orders Review Act, 28 U.S.C. § 2342, and this Court’s seminal decision in Chevron USA, Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). This Court’s review is needed to clarify the jurisdiction of all courts to decide the proper level of deference afforded to interpretive agency guidance. If allowed to stand, the Fourth Circuit’s jurisdiction-stripping ruling would elevate those agencies identified in the Hobbs Act above even the judiciary; empowering agency orders to trump the courts’ fundamental “province and duty” to interpret the law.
Even if the Justices succeed in limiting their consideration in this case to the stated issue, their opinions are likely to discuss other degrees and varieties of deference and thus shed light on the future of the phenomenon.
An article describing the facts and relevant law in more detail is here.