This morning, the U.S. Supreme Court refused to answer the question of whether federal courts have the power to scrutinize FCC orders. In the decision being challenged, the Fourth Circuit Court of Appeals held that the trial court must follow a 2006 FCC order finding that a fax offering free services is an “unsolicited advertisement” under the TCPA.
The justices believed that two significant questions were not addressed before the Court of Appeals:
- whether the challenged 2006 FCC order is the equivalent of a “legislative rule” that has the “force and effect of law” or is an “interpretive rule” that merely advises the public of the FCC’s stance on an issue; and
- Whether the petitioner, PDR Network, a health information services provider, had a “prior” and “adequate” opportunity to seek judicial review of the FCC’s order
As a result, the Supreme Court returned the matter to the Court of Appeals to rule on those preliminary issues. Justice Breyer wrote the majority opinion and was joined by Chief Justice Roberts and Justices Ginsburg, Sotomayor, and Kagan. The remaining justices concurred.
This leaves unanswered the clash between the Chevron doctrine – which allows courts some latitude in interpreting agency decisions –and the Hobbs Act – which requires district courts to defer to the agency. This question also presents potential to impact district courts’ ability to question FCC guidance on a multitude of issues under the TCPA.
* Kayley Lew contributed to this post.