Supreme Court Denies Petition For Certiorari Of Eighth Circuit Decision Holding That Defendant Cannot Collaterally Attack FCC TCPA Rule in Federal Court Under The Hobbs Act

As previously reported (read here), the federal courts have been confronting many issues involving The Administrative Orders Review Act ("Hobbs Act"), 28 U.S.C. § 2342, in TCPA litigation, particularly in cases where defendants have sought to challenge the validity of FCC rules promulgated under the TCPA. The Hobbs Act provides that the federal appellate courts have exclusive jurisdiction to review and determine the validity of FCC orders. Otherwise, a challenge to a specific FCC rule needs to be raised by petition for reconsideration, petition for declaratory ruling or a new rulemaking before the FCC.

In Nack v. Walburg, 715 F.3d 680 (8th Cir. 2013), the Eighth Circuit, in May, 2013, relying on an FCC amicus brief, reversed a summary judgment for the defendant attorney handbook publisher in a TCPA class action in which the plaintiff sued not because he did not consent to receive the fax advertisement, but because the fax lacked the required fax opt-out language required by the FCC rule. The Eighth Circuit held that the Hobbs Act "generally precludes our court from holding the contested regulation invalid outside the statutory procedure mandated by Congress." 715 F.3d at 686. The Eighth Circuit agreed with the Seventh Circuit that it "makes no difference" whether the question of a regulation's validity arises in a private suit between two parties because the Hobbs Act's jurisdictional limitations apply whether a litigant seeks to challenge the rule "'directly...or indirectly.'" Id., quoting CE Design, Ltd. v. Prism Business Media, Inc., 606 F.3d 443, 448 (7th Cir. 2010). The Eighth Circuit encouraged the district court to stay the proceedings pending any further FCC determinations that the defendant might pursue. Subsequently, as previously reported, the defendant Walburg filed a petition for declaratory ruling challenging FCC Rule 64.1200(a)(3)(iv) in August, 2013.

While the petition for declaratory ruling was pending, the defendant filed a petition for certiorari to the U.S. Supreme Court in October, 2013. The defendant argued that the Eighth Circuit decision is irreconcilable with the Sixth Circuit's decision in Leyse v. Clear Channel Broadcasting, Inc., 697 F.3d 360 (6th Cir. 2012), in which the Sixth Circuit held that it had authority to review the plaintiff's arguments that an FCC rule exempting certain broadcaster prerecorded calls to consumers as regulated "advertisements" under the TCPA was unlawful. The Sixth Circuit reasoned that...

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