EPIC - PDR Networks v. Carlton & Harris Chiropractic

PDR Networks v. Carlton & Harris Chiropractic

Whether the Hobbs Act required the district court in this case to accept the FCC's legal interpretation of the Telephone Consumer Protection Act.

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Supreme Court Sidesteps Merits in Junk Fax Case: The Supreme Court today directed a lower court to reexamine PDR Network v. Carlton & Harris Chiropractic, a case which concerns a company's efforts to disregard an FCC rule about junk faxes. The Court told the Fourth Circuit to resolve "preliminary" questions about the legal effect of the FCC rule and the company's ability to challenge the rule through the agency process. EPIC filed an amicus brief in the case. EPIC explained that permitting companies to challenge FCC rules outside the process Congress established "will exclude the voices of consumers" in agency decision-making. EPIC also explained that the company's efforts to sidestep agency rules will benefit those "who have resources to attack FCC rules." EPIC and other consumer organizations routinely provide comments to federal agencies through the federal agency rule making process. EPIC also contributed to the development of the robocall and junk fax laws. EPIC has since worked to ensure that telephone users are protected from invasive business practices through agency comments and amicus briefs in cases such as ACA International and Gallion v. Charter Communications. (Jun. 20, 2019)
EPIC Urges Supreme Court to Preserve Public Voice in Robocall and Junk Fax Law: EPIC has filed an amicus brief urging the Supreme Court to safeguard FCC rules that protect the public from robocalls and junk faxes. The case, PDR Network v. Carlton & Harris Chiropractic, concerns a company's efforts to disregard an FCC rule about junk faxes. EPIC explained that permitting companies to avoid FCC rules "will exclude the voices of consumers" in agency decision making. EPIC also explained that the company's efforts to sidestep agency rules will benefit those "who have resources to attack FCC rules." EPIC contributed to the development of the robocall and junk fax laws. EPIC has since worked to ensure that telephone users are protected from invasive practices through agency comments and amicus briefs in cases such as ACA International and Gallion v. Charter Communications. (Feb. 14, 2019)

More top news »

EPIC Joins Coalition Urging FCC Not to Permit Unfettered Ringless Voicemails » (Oct. 5, 2021)

EPIC has joined a coalition of consumer groups led by the National Consumer Law Center to urge the FCC to reject a proposal that would make it legal for callers to drop voicemails directly into people's phones without their consent. The groups explained that allowing such “ringless voicemail” would clog consumers’ voicemail boxes with spam, scams, and debt collection notices. More than 90,000 consumers signed a petition urging the FCC to reject the proposal, and thousands of others, including small businesses and medical professionals, have filed comments with the FCC registering their concern with the harms presented by ringless voicemail. EPIC routinely participates in regulatory and legislative processes concerning robocalls and files amicus briefs in robocall cases.

EPIC & National Consumer Law Center Tell Court Not to Let Robocallers Off the Hook » (Feb. 2, 2021)

EPIC and the National Consumer Law Center have filed an amicus brief in Lindenbaum v. Realgy, LLC, urging the Sixth Circuit to reject immunity for illegal robocalls made between 2015 and 2020. The case follows the Supreme Court’s decision in Barr v. American Association of Political Consultants, in which the Court held that an exception added in 2015 to the decades-old robocall restriction was unconstitutional and must be severed from the broad robocall ban. As defendant in a separate robocall suit, Realgy argued that the Supreme Court’s decision meant that the broad robocall ban was unenforceable for the period that the unconstitutional exception was in effect, from 2015-2020. The district court agreed and granted Realgy’s motion to dismiss. EPIC and NCLC filed an amicus brief arguing that granting robocallers immunity “would reward those who made tens of billions of unwanted robocalls and deprive consumers of any remedy for the incessant invasion of their privacy.” EPIC regularly files amicus briefs supporting consumers in illegal robocall cases.

Supreme Court to Decide Scope of Robocall Ban » (Jul. 9, 2020)

Just days after upholding the federal robocall ban against a First Amendment challenge, the U.S. Supreme Court has agreed to decide the scope of the ban in a new case, Duguid v. Facebook. Following the D.C. Circuit’s invalidation of the FCC’s definition of an “autodialer”—the technology companies use to automatically dial vast numbers of consumers— federal appeals courts have split on how to interpret the term. Telemarketers argue that an autodialer must generate random or sequential numbers, while consumers and consumer groups like EPIC maintain that the law bans systems that automatically call numbers from lists. In Gadelhak v. AT&T, EPIC argued that adopting the telemarketers’ autodialer definition “would undermine the law's effectiveness by inviting easy circumvention and rendering the restriction obsolete.” EPIC routinely files amicus briefs in cases on the Telephone Consumer Protection Act.

Supreme Court Hears Oral Argument in Robocall Ban Case » (May. 6, 2020)

Earlier today, the U.S. Supreme Court heard oral argument in Barr v. American Association of Political Consultants. The argument was livestreamed, with EPIC staff providing commentary on Twitter. The case asks whether an exemption to the Telephone Consumer Protection Act, a law that prohibits unwanted robocalls, is constitutional, and, if not, whether the exemption should be severed or the whole law struck down. EPIC defended the TCPA in an amicus brief. EPIC said that the robocall ban is "constitutionally permissible and serves important governmental interests." EPIC explained that cell phone adoption has made "the harm caused by unwanted automated calls" greater than when the robocall ban was enacted in 1991. EPIC said that "without the autodialer ban, the assault of unwanted calls could make cell phones unusable." EPIC also argued that "a minor amendment to an otherwise constitutional law, passed decades after the original enactment, should not take down an act of Congress." EPIC frequently files amicus briefs on the TCPA, including in the related case, Gallion v. Charter Communications.

EPIC, Consumer Groups Call for Review of Robocall Ruling » (Mar. 12, 2020)

EPIC joined the National Consumer Law Center and other consumer groups in an amicus brief supporting review of recent decision that limits consumer robocall protections. In Gadelhak v. AT&T Services, the Seventh Circuit concluded that consumers who receive an automated text message can sue under the federal anti-robocall law, but only if the autodialer has a random number generator. The decision deepened a split among federal appeals courts over the scope of federal robocall protections. EPIC and NCLC also filed an amicus brief during the court's original consideration of the case. The EPIC brief explained that allowing telemarketers to auto-dial consumers "would undermine the law's effectiveness by inviting easy circumvention and rendering the restriction obsolete." EPIC routinely files amicus briefs on consumer privacy issues, including several amicus briefs on the TCPA.

EPIC to Supreme Court: Robocall Ban is Constitutional » (Mar. 2, 2020)

In an amicus brief for the U.S. Supreme Court, EPIC today defended the Telephone Consumer Protection Act, a law that prohibits unwanted robocalls. EPIC said that the robocall ban is "constitutionally permissible and serves important governmental interests." EPIC explained in Barr v. American Association of Political Consultants that "the harm caused by unwanted automated calls" is more acute than when the robocall ban was enacted in 1991. EPIC said "without the autodialer ban, the assault of unwanted calls could make cell phones unusable." EPIC also argued that "a minor amendment to an otherwise constitutional law, passed decades after the original enactment, should not take down an act of Congress." Senator Markey, Representative Eshoo, and more than a dozen members of Congress also filed an amicus brief in support of the consumer privacy law. EPIC frequently files amicus briefs on the TCPA, including in the related case, Gallion v. Charter Communications.

Federal Appeals Court Rules Consumers Can Sue for Automated Texts—But Only If Calls Are Random » (Feb. 19, 2020)

The Seventh Circuit has concluded that consumers who receive an automated text message can sue under the federal anti-robocall law, but only if the autodialer has a random number generator. The decision in Gadelhak v. AT&T Services deepens a split among federal appeals courts over the scope of federal robocall protections. EPIC and the National Consumer Law Center filed an amicus brief in the case, arguing that an autodialer need only dial numbers from a list, such as a customer contact database. EPIC and the NCLC explained that allowing telemarketers to robocall consumers from a list "would undermine the law's effectiveness by inviting easy circumvention and rendering the restriction obsolete." The EPIC routinely files amicus briefs on consumer privacy issues, including several amicus briefs on the TCPA.

Supreme Court to Review Constitutionality of Federal Robocall Ban » (Jan. 11, 2020)

The Supreme Court has aqreed to hear a challenge to the constitutionality of the Telephone Consumer Protection Act, a federal law that prohibits unwanted robocalls. The law generally restricts the use of autodialers, but in 2015 Congress created an exception for robocalls to collect debts guaranteed by the federal government. Several groups have since challenged the law on First Amendment grounds, arguing that the TCPA discriminates against particular speakers. The Court will now consider the issue in Barr v. American Association of Political Consultants. EPIC filed an amicus brief in Gallion v. Charter Communications, a related case, arguing that “these challenges represent a systematic effort by companies to undermine the purpose of the TCPA and to inundates consumers with unwanted calls.” EPIC routinely files amicus briefs on consumer privacy issues, including several amicus briefs on the TCPA.

House Passes Bill to Combat Robocalls » (Jul. 25, 2019)

In a 429-3 vote, the House passed a bill to combat the onslaught of robocalls. The Stopping Bad Robocalls Act would increase the fines for illegal robocalls, require phone companies to block robocalls by default, require more businesses to obtain consumer consent before calling, and much more. The Act comes two months after the Senate passed a similar bill—the Traced Act—with near unanimous support. Many criticized the Senate's bill for not going far enough. EPIC joined a coalition of consumer groups that urged members of Congress to support the House bill. EPIC has long advocated for stronger regulations surrounding robocalls. EPIC provided expert analysis to Congress, submitted numerous comments, and filed multiple amicus briefs emphasizing the need to limit robocalls.

Ninth Circuit Strikes Down Debt-Collection Exception to Robocall Ban » (Jul. 9, 2019)

The Ninth Circuit has again found that the Telephone Consumer Protection Act limits the ability of government debt collectors to make robocalls. The law prohibits automated calls to cell phones, except in emergencies or with the consent of the called party. But in 2015 Congress created an exception for calls made to collect debts guaranteed by the federal government. In Duguid v. Facebook, the Ninth Circuit found that the exception violated the First Amendment because it preference debt collectors over other companies that could might use robocall technology. The outcome is favorable for consumer privacy. EPIC filed a "friend of the court" brief in Gallion v. Charter Communications, a similar case in the Ninth Circuit, arguing that "the TCPA prohibitions are needed now more than ever." EPIC routinely files amicus briefs on consumer privacy issues, including several amicus briefs on the TCPA.

EPIC, NCLC Urge Federal Appeals Court to Limit Robocalls » (Jul. 9, 2019)

EPIC and the National Consumer Law Center have filed an amicus brief in a case concerning the scope of the federal law, the Telephone Consumer Protection Act, that protects consumers against robocalls. In Gadelhak v. AT&T Services, EPIC and NCLC argued that list-based systems are included among the law's definition of "autodialers." To do otherwise, the brief explained, "would undermine the law's effectiveness by inviting easy circumvention and rendering the restriction obsolete." EPIC and NCLC further explained that the "mass texting from a list, such as the system used by AT&T in this case, is precisely the type of technology the TCPA sought to restrict." The amici warned that a narrow interpretation of the law "would accelerate the rising levels of robocalls and texts." EPIC routinely files amicus briefs on consumer privacy issues, including several amicus briefs on the TCPA.

Congress, FTC Take Action Against Robocallers » (Jun. 27, 2019)

A House subcommittee voted unanimously to advance a wide-ranging bill intended to crack down on robocalls. The Stopping Bad Robocalls Act (H.R. 3375) would enroll customers in free call-blocking programs and take more aggressive rulemaking steps to ensure people only get calls they ask to receive. The FTC also announced a partnership with state enforcers--"Operation Call it Quits"—to crack down on illegal robocalls. The initiative includes 94 actions targeting robocallers responsible for more than one billion calls. EPIC has worked to ensure that telephone users are protected from invasive business practices through agency comments and amicus briefs in cases such as ACA International and Gallion v. Charter Communications.

Supreme Court Sidesteps Merits in Junk Fax Case » (Jun. 20, 2019)

The Supreme Court today directed a lower court to reexamine PDR Network v. Carlton & Harris Chiropractic, a case which concerns a company's efforts to disregard an FCC rule about junk faxes. The Court told the Fourth Circuit to resolve "preliminary" questions about the legal effect of the FCC rule and the company's ability to challenge the rule through the agency process. EPIC filed an amicus brief in the case. EPIC explained that permitting companies to challenge FCC rules outside the process Congress established "will exclude the voices of consumers" in agency decision-making. EPIC also explained that the company's efforts to sidestep agency rules will benefit those "who have resources to attack FCC rules." EPIC and other consumer organizations routinely provide comments to federal agencies through the federal agency rule making process. EPIC also contributed to the development of the robocall and junk fax laws. EPIC has since worked to ensure that telephone users are protected from invasive business practices through agency comments and amicus briefs in cases such as ACA International and Gallion v. Charter Communications.

FCC Affirms Robocall Blocking By Default to Protect Consumers » (Jun. 7, 2019)

The FCC voted to confirm that voice service providers may aggressively block unwanted robocalls before they reach consumers. The Commission stated: "While many phone companies now offer their customers call blocking tools on an opt-in basis, the Declaratory Ruling clarifies that they can provide them as the default, thus allowing them to protect more consumers from unwanted robocalls and making it more cost-effective to implement call blocking programs." EPIC has long advocated for robust telephone privacy protections. Last week, EPIC submitted comments to the FCC recommending that the agency (1) require phone providers to proactively block calls from numbers that are unassigned, unallocated, or invalid; (2) prohibit spoofing if there is an intent to defraud or cause harm; and (3) encourage the use of call authentication technology that safeguards caller anonymity. EPIC filed amicus briefs earlier this year and in 2015 that strengthened consumer protections for robocalls.

Senate Passes Anti-Robocall Act 97-1 » (May. 23, 2019)

The Senate overwhelmingly passed the Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act, sponsored by Senator John Thune (R-S.D.) and Senator Ed Markey (D-Mass.). The Act would give regulators more time to find scammers, increases civil penalties, promotes call authentication and blocking techniques, and brings together federal agencies and state attorneys general to coordinate prosecution of robocallers. EPIC has long advocated for robust telephone privacy protections and regularly files amicus briefs and comments in support of stronger consumer protections against robocalls.

Appeals Court Strikes Down Debt Collector Exception to Robocall Ban » (Apr. 25, 2019)

A federal appeals court ruled today that an amendment to the federal robocall ban is unconstitutional. The Telephone Consumer Protection Act prohibits automated calls to cell phones, except in emergencies or with the consent of the called party. But in 2015 Congress created an exception for calls made to collect debts guaranteed by the federal government. The court in AAPC v. FCC found that the debt-collection exemption "undercuts" the privacy protections in the law. So the court found the exception unconstitutional and struck it from the law. EPIC filed a "friend of the court" brief in Gallion v. Charter Communications, a similar case in the Ninth Circuit, arguing that "the TCPA prohibitions are needed now more than ever." EPIC has testified in support of the TCPA and has submitted extensive comments and amicus briefs on the consumer privacy law.

Bill to Limit Robocalls Moves Forward in Senate » (Apr. 3, 2019)

The Senate Commerce Committee today approved a bill to strengthen the FCC's ability to prevent robocalls. The Telephone Robocall Abuse Criminal Enforcement and Deterrence or TRACED Act, enhances the FCC's authority to issue fines against robocallers, extends the statute of limitations, and promotes call authentication and blocking adoption. EPIC has long advocated for robust telephone privacy protections. Last week, EPIC submitted comments to the FCC recommending that the agency (1) require phone providers to block calls from numbers that are unassigned, unallocated, or invalid; (2) prohibit spoofing if there is an intent to defraud or cause harm; and (3) encourage the use of call authentication technology that safeguards caller anonymity. EPIC filed amicus briefs earlier this year and in 2015 that strengthened consumer protections for robocalls.

EPIC Urges Supreme Court to Preserve Public Voice in Robocall and Junk Fax Law » (Feb. 14, 2019)

EPIC has filed an amicus brief urging the Supreme Court to safeguard FCC rules that protect the public from robocalls and junk faxes. The case, PDR Network v. Carlton & Harris Chiropractic, concerns a company's efforts to disregard an FCC rule about junk faxes. EPIC explained that permitting companies to avoid FCC rules "will exclude the voices of consumers" in agency decision making. EPIC also explained that the company's efforts to sidestep agency rules will benefit those "who have resources to attack FCC rules." EPIC contributed to the development of the robocall and junk fax laws. EPIC has since worked to ensure that telephone users are protected from invasive practices through agency comments and amicus briefs in cases such as ACA International and Gallion v. Charter Communications.

EPIC Supports Constitutionality of "Robocall" Law » (Nov. 13, 2018)

EPIC has filed a "friend of the court" brief in a case concerning the constitutionality of the Telephone Consumer Protection Act, the law the prohibits unwanted "robocalls." In Gallion v. Charter Communications, EPIC argued that "the TCPA prohibitions are needed now more than ever," citing the intrusiveness of marketing calls directed toward cell phones. EPIC also said the TCPA "protects important consumer privacy interests." EPIC testified in support of the TCPA and has submitted extensive comments and amicus briefs on the consumer privacy law.

EPIC Advises FCC on Robocalls Regulation » (Jun. 29, 2018)

EPIC advised the FCC on how to interpret the Telephone Communications Protection Act to best protect consumers in light of the recent decision in ACA Int'l v. FCC. EPIC filed a friend of the court brief in that case arguing that consumers could revoke consent by any "reasonable means." The court agreed but vacated other aspects of the rule. Many industry groups urged the Commission to make a rule that if "any" human intervention is involved in the dialing or sorting of the list of numbers a calling system would not be considered an "automatic telephone dialing system." EPIC opposed that recommendation, explaining that such a definition would allow autodialers to use deceptive tactics to evade regulation. EPIC contributed to the development of the Telephone Communications Protection Act and regularly submits comments to the FCC.

EPIC Supports Additional Regulation of Robocalls » (Apr. 17, 2018)

In advance of a hearing on "Abusive Robocalls and How We Can Stop Them" EPIC recommended reforms that would combat fraud while protecting privacy. EPIC supports regulations that would (1) allow phone providers to proactively block numbers that are unassigned, unallocated, or invalid; (2) block invalid numbers without requiring consumer consent; (3) provide strong security measures for any database of blocked numbers; and (4) prohibit spoofing with the intent to defraud or cause harm. EPIC played a leading role in the creation of the Telephone Consumer Protection Act and continues to defend the Act.

D.C. Circuit Affirms "Consent" Protection in FCC Robocall Rule » (Mar. 16, 2018)

A federal appeals court ruled today in a closely watched case concerning robocalls. The rule under review in ACA International v. FCC concerned the FCC's regulations for the Telephone Consumer Protection Act. EPIC filed a friend of the court brief in the case in support of the FCC regulations. EPIC said that companies "seeking to engage in privacy-invading business practices" bear "the burden of proving consent." The court agreed that consumers could withdraw consent by all "reasonable means." However, the court vacated other aspects of the rule, including the definition of automated telephone dialing system and proposed procedures for calls to reassigned numbers.

DC Appeals Court Hears Arguments in Telemarketing Privacy Case » (Oct. 20, 2016)

The federal appeals court in Washington, D.C. heard oral arguments Wednesday in a case with major implications for telephone privacy. The suit, ACA International v. FCC, was brought against the Federal Communications Commission by telemarketing companies and others challenging rules adopted under the Telephone Consumer Protection Act that prohibit automated calls made to cell phones without their consent. EPIC and six consumer privacy groups filed an amicus brief in the case, stressing the importance of privacy protections for cell phone users. EPIC also challenged a claim made by the telemarketers that "37 million" numbers were reassigned each year, making it difficult, the companies claimed, to comply with the privacy law. During the argument, one of the judges pressed the telemarketers' attorney on the point (audio), citing research in the EPIC amicus brief. EPIC frequently participates as amicus curiae in cases that raises novel privacy issues.

EPIC, Consumer Coalition Tells FCC to Limit Health Care Robocalls » (Oct. 19, 2016)

EPIC and a coalition of consumer privacy advocates have urged the Federal Communications Commission to reject a request by health insurance companies to make unlimited health-related robocalls to consumers under the Telephone Consumer Protection Act. The insurance companies asked the FCC to amend the TCPA so that once a consumer provides her phone number to her doctor, she has "consented" to receiving telemarketing calls from other health care providers on anything medically related. The coalition comments, led by the National Consumer Law Center, urge the FCC to limit the scope of consumers' consent to medical robocalls by exclude telemarketing calls and allowing only calls related to the original reason the consumer provided her phone number. EPIC supports robust telephone privacy protections and filed an amicus brief in support of the FCC's 2015 order that strengthened consumer protections under the TCPA.

EPIC Advises Congress on Modernizing Telemarketing Rules to Protect Consumers » (Sep. 21, 2016)

EPIC has sent a letter to the House Energy and Commerce Committee in advance of the hearing on “Modernizing the Telephone Consumer Protection Act.” The telemarketing law bars telemarketers and robocallers from contacting consumers by phone fax, or text without prior consent. EPIC urged the Committee to ensure that an update to the law “protects consumers from unwanted commercial communications.” EPIC said legal rights should be “robust, enforceable and minimally burdensome for consumers." Earlier this year, EPIC filed an amicus brief in support of strengthening TCPA protections for consumers. EPIC has also testified before Congress about the telemarketing law and submitted many comments concerning its implementation.

EPIC, Consumer Coalition Oppose Robocalls by Government Contractors » (Jul. 26, 2016)

EPIC and a coalition of consumer groups have petitioned the FCC to reverse its recent decision to exempt federal contractors from restrictions on telemarketing and robocalls. The FCC incorrectly determined that the Telephone Consumer Protection Act (TCPA) “does not apply to calls made by or on behalf of the federal government in the conduct of official government business.” The petition, led by the National Consumer Law Center, warns of significant increases in unwanted robocalls from government contractors that consumers would be powerless to stop. EPIC supports robust telephone privacy protections and filed an amicus brief in support of the FCC’s 2015 order that strengthened consumer protections under the TCPA.

Senate Examines "Do Not Call" Law » (May. 19, 2016)

The Senate Commerce Committee held a hearing yesterday on the Telephone Consumer Protection Act. The "TCPA" bars telemarketers and robocallers from contacting consumers by phone or fax without prior express consent. In January, EPIC filed an amicus brief to provide greater TCPA protections for consumers. EPIC said that widespread use of cellphones “has amplified the nuisance and privacy invasion caused by unwanted calls and text messages.” EPIC has testified before Congress about the TCPA and submitted many comments concerning the implementation of the consumer privacy law.

EPIC and Consumer Privacy Groups File Brief Supporting FCC in Telephone Privacy Case » (Jan. 25, 2016)

EPIC and six consumer privacy organizations have filed a "friend-of-the-court" brief in support of the Federal Communications Commission in ACA International v. FCC. The case was brought against the FCC by industry groups charged with violating the Telephone Consumer Protection Act. The FCC had made clear that companies cannot make automated or prerecorded calls to consumers without their consent. EPIC argued in its brief that widespread adoption of cell phones "has amplified the nuisance and privacy invasion caused by unwanted calls and text messages." EPIC and the consumer organizations urged the federal court to uphold the FCC order safeguarding consumers.

Supreme Court Rules Settlement Offers Can't Moot Consumer Class Actions » (Jan. 20, 2016)

The Supreme Court has ruled that a company cannot terminate class action litigation by strategically making a settlement offer of full relief to individual plaintiffs. The case, Campbell-Ewald Co. v. Gomez, involved a consumer who refused to drop his Telephone Consumer Protection Act lawsuit in exchange for such an offer. The defendant company argued that the offer, which exceeded the statutory damages under the TCPA, mooted his case. The Justices disagreed, ruling 6-3 that "an unaccepted settlement offer has no force. Like other unaccepted contract offers, it creates no lasting right or obligation." EPIC routinely works to protect consumer privacy interests in class action settlements.

FCC Implements Strict Rules to Halt Unwanted Telemarketing » (Jun. 19, 2015)

The Federal Communications Commission has adopted new rules that impose strict limits on telemarketing practices. Under the rules, consumers can halt unwanted messages by telling companies to stop calling. The rules also allow phone companies to offer call-blocking services to screen out automated telemarketing calls. In 2014, the FCC received more than 215,000 complaints from consumers regarding unwanted telephone solicitations. EPIC has previously urged the Commission to require express consumer consent for telemarketing calls and to protect wireless subscribers from telemarketing. EPIC President Marc Rotenberg helped establish the Telephone Consumer Protection Act.

Senators Urges FCC to Protect Consumers Against Unsolicited Calls » (Jun. 9, 2015)

Almost a dozen senators have urged the Federal Communications Commission to uphold consumer privacy protections within the Telephone Consumer Protection Act. Next week the Commission will vote on two dozen proposals seeking to relax enforcement of the Act. According to Senator Markey and others, the FCC's recommendation to permit unsolicited texts and calls without consumer consent "would threaten privacy and result in an increase in disruptive and annoying calls for American consumers." The Commission will vote on the proposals during an Open Meeting on June 18, 2015. EPIC supported enactment of the TCPA and has advocated for strong enforcement.

FCC Issues Stronger Telemarketing Rules to Protect Consumers » (Jun. 12, 2012)

The Federal Communications Commission's final rule amending the Telephone Consumer Protection Act of 1991 (TCPA) regulations is now in effect. The rule requires "(1)prior express written consent for all autodialed or prerecorded telemarketing calls to wireless numbers and residential lines; (2) allow[s] consumers to opt out of future robocalls during a robocall; (3) limit[s] permissible abandoned calls on a per-calling campaign basis, in order to discourage intrusive calling campaigns; and (4) exempts prerecorded calls to residential lines made by health care-related entities governed by the Health Insurance Portability and Accountability Act of 1996." EPIC has previously urged the Commission to require express consumer consent for telemarketing calls and to protect wireless subscribers from telemarketing. For more information, see EPIC: Telemarketing and the Telephone Consumer Protection Act (TCPA).

Summary

This case concerns federal courts' jurisdiction to disregard FCC interpretations of statutes like the Telephone Consumer Protection Act. Carlton & Harris Chiropractic sued PDR Networks after receiving an unsolicited fax offering a copy of the “Physicians Desk Reference,” a guide to pharmaceuticals. PDR offers the guide for free to health care providers, but collects fees from drug companies whose wares appear in the book. PDR moved to dismiss the case, claiming that the fax was not an “unsolicited advertisement” under the TCPA or the FCC's interpretation of the statute. Carlton & Harris argued that the fax was within FCC's definition of “unsolicited advertisement," and that the Hobbes Act prevented the district court from disregarding the FCC's interpretation in favor of the statutory language in the TCPA. The District Court sided with PDR in its understanding of the FCC definition, but also found that it did not have to accept the FCC's interpretation because the TCPA was unambiguous in its definition of "advertisement." Carlton & Harris appealed. The Fourth Circuit reversed, finding that the Hobbes Act requires district courts to apply FCC interpretations of the TCPA, and prevents them from turning to the statutory language for an alternative interpretation. PDR filed a petition for review in the U.S. Supreme Court, which was granted on November 13, 2018.

Background

Factual Background

PDR Network publishes the Physicians’ Desk Reference, a compendium of pharmaceutical information for physicians. PDR generally offers the reference book to physicians for free. PDR makes money by collecting fees from drug companies that pay to have their pharmaceutical labels printed in the book. PDR sent faxes to physicians offering a free eBook version of its reference book. Carlton & Harris Chiropractic received one of these faxes.

Legal Background

The Telephone Consumer Protection Act protects consumers from robocalls and junk faxes. Under the law, companies are prohibited from sending faxes containing "unsolicited advertisements.” The TCPA defines “unsolicited advertisement” as “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's express invitation or permission, in writing or otherwise.”

In 2006, the FCC issued an order interpreting “unsolicited advertisement.” The order states, in relevant part,

52. We conclude that facsimile messages that promote goods or services even at no cost, such as free magazine subscriptions, catalogs, or free consultations or seminars, are unsolicited advertisements under the TCPA's definition. In many instances, “free” seminars serve as a pretext to advertise commercial products and services. Similarly, “free” publications are often part of an overall marketing campaign to sell property, goods, or services. For instance, while the publication itself may be offered at no cost to the fascimile recipient, the products promoted within the publication are often commercially available. Based on this, it is reasonable to presume that such messages describe the “quality of any property, goods, or services.”186 Therefore, facsimile communications regarding such free goods and services, if not purely “transactional,” would require the sender to obtain the recipient's permission beforehand, in the absence of an EBR.”

In most cases involving agency interpretations of statutes, courts determine whether to defer to an agency interpretation using the two-step Chevron framework, named after the U.S. Supreme Court case that formalized the analysis. Under Chevron step one, a court examines whether the statutory language is unambiguous. If the court determines that the statutory language is ambiguous, then at Chevron step two, the court decides whether the agency's interpretation is reasonable. If the answer in Chevron step two is yes, the court must defer to the agency’s interpretation.

FCC interpretations are treated differently. The Hobbs Act, 28 U.S.C. § 2342, restricts federal courts’ jurisdiction over cases challenging the final orders of several administrative agencies, including the FCC. Federal courts of appeals have consistently held that, outside the statutory procedure for challenging FCC orders under the Hobbs Act, courts must accept FCC interpretations of statutes the agency administers.

Under the Hobbs Act, parties wishing to challenge a final order of the FCC must file a petition in the federal circuit court in which the petitioner resides, or in the D.C. Circuit, within 60 days of the order’s entry. If several petitions are filed challenging the same order, the petitions will be consolidated in one court of appeals. After the Hobbs Act period has lapsed, a challenger of FCC action is not without recourse: they may file a petition for agency action at the FCC, or even comment on a pending petition, and then petition a court of appeals for review of the outcome of the agency petition. District Courts have discretion to stay their proceedings pending agency resolution of a relevant petition.

The Hobbs Act has blocked both TCPA plaintiffs and defendants in private litigation from arguing that FCC interpretations should be ignored. Several TCPA plaintiffs have been prevented from arguing that the FCC’s interpretation of “prior express consent” conflicts with the clear meaning of the TCPA. TCPA plaintiffs have also failed in arguing that the FCC’s definition of an “established business relationship” defense should be ignored because Congress did not authorize the FCC to establish it. TCPA defendants have been blocked from challenging the FCC’s requirement that faxes have opt-out language even when they are sent with the consent of the recipient. Crucially, the Hobbs Act has prevented TCPA defendants from nullifying the FCC’s autodialer definition.

Procedural History

U.S. District Court for the Southern District of West Virginia

Carlton & Harris filed a putative class action in federal district court after receiving a fax from PDR Network offering a free eBook copy of PDR’s Physician’s Desk Reference. Carlton & Harris claimed that PDR violated the TCPA’s prohibition on “junk faxes” containing “unsolicited advertisements.” PDR filed a motion to dismiss, arguing that the text of the TCPA as well as the FCC’s 2006 Order interpreting the junk fax prohibition require that an “advertisement” offer goods or services for purchase. Because PDR offered its book for free, the corporation argued, the fax it sent to Carlton & Harris and others was not an “advertisement” under the TCPA. Carlton & Harris urged that, under the Hobbs Act, the court must adopt the FCC’s interpretation of “advertisement.” Carlton & Harris also argued that, contra PDR, the FCC’s interpretation of “advertisement” included offers of free goods and services from commercial entities.

The District Court agreed with PDR. First, the court decided that it need not defer to the FCC’s interpretation of “advertisement” under the Hobbs Act because the court was not planning to “determine the validity” of the order. In fact, the court said, it presumed the FCC order was valid. The court then determined, according to Chevron step one, that the TCPA’s definition of “advertisement” was unambiguous. The FCC’s interpretation of “advertisement” was thus not due “substantial deference” under Chevron, and the court declined to defer to it. The court went on to explain that, even if it were to defer to the FCC’s interpretation, the plaintiff would lose. The court found that both the plain text of the TCPA and the FCC’s 2006 order required an “advertisement” to have a “commercial aim” by either offering a good for sale or offering a free good that is “a pretext for a commercial transaction that will inevitably follow from the fax.” Because PDR’s fax did not offer anything for sale, nor did PDR “plausibly benefit commercially from the free distribution” of its book, PDR’s fax was not an “advertisement” under either the plain text of the TCPA or the FCC’s 2006 Order.

U.S. Court of Appeals for the Fourth Circuit

Carlton & Harris appealed to the Fourth Circuit, which reversed. The court found that the Hobbs Act deprived the district court of jurisdiction to consider the validity of the 2006 FCC Order, that the district court was precluded from engaging in any Chevron analysis, and that the plain text of the FCC order created a broad prohibition on faxes offering free goods and services. First, the Fourth Circuit rejected the district court’s contention that the Hobbs Act only applies to direct challenges to the validity of FCC orders, finding instead that what matters is the “practical effect” of a ruling —- and ignoring an FCC order is tantamount to invalidating it. According to the Fourth Circuit, under the Hobbs Act, the district court should have applied the FCC order -— and that is all. Further, the Fourth Circuit concluded that the district court’s construction of the FCC order contradicted the plain text of the order.

One dissenting judge on the Fourth Circuit would have found that the Hobbs Act did not prohibit the district court from reaching Chevron step one. The judge argued that a court invalidates an agency’s order only when it finds the agency’s construction in conflict with an unambiguous statutory provision, which the district court did not do in this case. The dissent went on to find that the TCPA’s definition of “advertisement” was ambiguous, but the judge would have upheld the district court’s interpretation of the 2006 Order.

U.S. Supreme Court

PDR filed a petition for a writ of certiorari at the U.S. Supreme Court, seeking reversal of the Fourth Circuit’s decision. PDR requested review on two issues:

Does the Hobbs Act strip courts of jurisdiction to engage in a traditional Chevron analysis and require automatic deference to an agency’s order even if there has been no challenge to the “validity” of such order?
Must faxes that “promote goods and services even at no cost” have a commercial nexus to a firm’s business to qualify as an “advertisement” under the TCPA, or does a plain reading of the FCC’s 2006 order create a per se rule that such faxes are automatically “advertisements”?

The Court granted certiorari on one question: Whether the Hobbs Act required the district court in this case to accept the FCC’s legal interpretation of the TCPA. The Court will not review the Fourth Circuit’s interpretation of “advertisement.”

EPIC's Interest

EPIC has an interest in ensuring that the TCPA’s privacy protections remain strong. EPIC contributed to the formation of the TCPA, and has since worked to ensure that telephone users are protected from invasive practices. In 2006, EPIC submitted comments to the FCC on the order at issue in the underlying case. EPIC has continued to submit comments to the FCC on implementation of the TCPA. In 2016, EPIC submitted an amicus brief in ACA International v. FCC, a case where corporations challenged the FCC’s 2015 Order implementing several robocall prohibitions in the TCPA. In 2018, EPIC filed an amicus brief in Gallion v. Charter Communications, in which EPIC described various strategies corporations are using to undermine the TCPA’s protections at the FCC and in federal court.