In a 6-3 ruling in Loper Bright Enterprises v. Raimondo, the Supreme Court overturned decades-old precedent set in Chevron v. National Resources Defense Council, known as the “Chevron deference.”
Chevron deference required that when a federal statute is ambiguous on a topic under review by a court, and a federal agency has issued a reasonable interpretation of that topic, the court must follow the agency’s interpretation, even if the court disagrees with it.
The impact of this ruling cannot be overstated. Chevron deference was one of the most important administrative law principles over the past 40 years and provided administrative agencies with significant power. Now, courts are no longer required to follow an administrative agency’s interpretation of an ambiguous statute and instead are free to reach their own interpretation.
So, what does this mean for the TCPA?
The Hobbs Act still applies to courts interpreting the TCPA. Passed in 1946, Hobbs specifically requires district courts (trial courts) to follow relevant prior FCC interpretations when the TCPA is ambiguous. However, it also gives federal courts of appeals (circuit courts) “exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of” certain “final orders of the Federal Communication Commission.”
Additionally, in Skidmore v. Swift & Co. the U.S. Supreme Court previously addressed an issue similar to Chevron, which is now referred to as “Skidmore deference.” Unlike Chevron, which required a federal court to defer to an agency’s reasonable interpretation of an ambiguous statute, Skidmore allows a federal court to determine the appropriate level of deference for each case based on the persuasiveness of the federal agency’s interpretation. As a result, courts are still free to consider a federal agency’s interpretation when interpreting a statute.
Practically speaking, courts ruling in TCPA cases will still look to the FCC for guidance. I suspect, unless the FCC has completely missed the mark, they will frequently follow the FCC’s reasonable guidance. However, while this body of law continues to evolve in courts, litigants will face more uncertain outcomes than when Chevron applied.
* Tori Gellar contributed to this article.
Michele is the Managing Partner at M&S and former Chief of the Ohio Attorney General’s Consumer Protection Section. Bringing more than two decades of experience in the consumer protection arena, she advises highly regulated businesses on a wide range of telemarketing, privacy, and other consumer protection matters.