Chicago partner Justin Kay was quoted in a Law360 article entitled “High Court May Upend TCPA Litigation Landscape.” The article addresses the Supreme Court’s decision to grant the defendant’s petition for certiorari in PDR Network, LLC v. Carlton & Harris Chiropractic, Inc.—a TCPA fax case. The question the Supreme Court will address is whether the Hobbs Act requires a district court to accept the FCC’s legal interpretation of the Telephone Consumer Protection Act. Recently appointed Justice Kavanaugh previewed his view on this question in last year’s Bais Yaakov of Spring Valley v. FCC decision.
Justin noted that “after initially waiving their right to respond, but then being specifically asked by the Supreme Court to file a response, some of those same plaintiffs’ attorneys [in Bais Yaakov] filed an opposition to the petition for certiorari [in PDR], making similar arguments to those made in Bais Yaakov — that courts should not use [Chevron U.S.A. v. Natural Resources Defense Council, Inc.] to sidestep agency interpretations of the regulations they are asked to implement.”
Justin also addressed the challenge for the FCC in addressing the specific question presented: “On the one hand, Chairman Pai has stated repeatedly — and specifically in the context of Bais Yaakov and TCPA fax regulations — that the FCC under his watch will ‘strive to follow the law and exercise only the authority that has been granted to [it] by Congress.’” “But on the other hand, it is not hard to imagine Chairman Pai and the FCC pushing back on the ability of district courts to side-step the FCC’s interpretations using Chevron.”