Earlier this month the Supreme Court granted certiorari in PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., the resolution of which will impact the judiciary’s power to interpret agency rules. The facts underlying case appear unremarkable on their face; a health information service and publisher sent a single fax to a chiropractor’s office in December 2013 offering a free copy of its “2014 Physicians’ Desk Reference” e-book. The recipient of the fax, Carlton & Harris Chiropractic, then sued the publisher, PDR Network, in West Virginia federal court in November 2015 for allegedly violating a 2006 Federal Communications Commission (“FCC”) rule that interprets the Telephone Consumer Protection Act (“TCPA”) to prohibit unsolicited faxes even if the faxes only offer free products.
But, the district court dismissed Carlton & Harris’s suit, citing the famous 1984 case Chevron USA Inc. v. NRDC Inc. to hold that the court need not defer to the FCC’s interpretation of the TCPA. Carlton & Harris then appealed the dismissal. Fourth Circuit vacated the decision, holding that the district court had contravened the Administrative Orders Review Act—also known as the Hobbs Act—which “requires a district court to follow FCC interpretations of the TCPA,” according to its February 2018 opinion. PDR Network now argues that the Fourth Circuit went too far, and has upset the balance of power between the branches of government by “elevat[ing] 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.” No amicus briefs have been filed, and the parties have yet to submit briefs on the merits.
Takeaway: In this case the Supreme Court will examine and resolve tensions between Chevron deference and the Hobbs Act, which may have greater implications beyond merely the FCC and solicitations by fax. Advertisers are advised to monitor its resolution.