In October, the U.S. Supreme Court agreed to hear yet another case, at least its third in the past six years, related to the TCPA.
The case the Court will hear this term involves McLaughlin Chiropractic Associates. McLaughlin filed a putative TCPA class action against McKesson Corp. alleging it had received unsolicited junk faxes lacking the statutorily required opt-out provisions.
Although a class was initially certified, the U.S. District Court for the Northern District of California decertified the class following the issuance of the 2019 Amerifactors Declaratory Ruling by the Federal Communication Commission (FCC) (https://www.manatt.com/insights/newsletters/tcpa-connect/tcpa-doesnt-cover-online-fax-services-fcc-rules).That Ruling determined that the TCPA does not apply to faxes received through an online fax service.
In decertifying the class, the district court concluded it would be impossible to distinguish between class members who received fax transmissions through an online fax service and those who received them via a traditional fax machine without making individualized inquiries. The Ninth Circuit affirmed the district court’s decertification decision, agreeing that the district court was bound by the FCC’s Amerifactors Ruling.
The petitioner’s briefing argues that the courts should not have been so deferential. Particularly, the petitioner argued that the Hobbs Act does not require federal courts to give FCC orders “absolute deference” in “garden-variety” private enforcement actions.1 Instead, parties in private enforcement actions should be able to challenge an agency’s interpretation as incorrect, letting the court, and not the regulator, decide the issue.
The issue picks up where a separate TCPA dispute the Supreme Court heard in recent years left off: 2019’s PDR Network, LLC v. Carlton & Harris Chiropractic (https://www.manatt.com/insights/newsletters/tcpa-connect/supreme-court-leaves-unanswered-whether-district).
In that case—also involving allegedly unsolicited fax advertisements—the Court failed to reach the question of the level of deference owed to FCC interpretations by district courts, finding two “preliminary issues” needed to be addressed by the lower courts. Now the Court has agreed to tackle the issue head on.
Why it matters: The Court’s decision could have a major impact on TCPA litigation, particularly in light of the recent Supreme Court decision overturning the doctrine of deference to agency interpretations in Loper Bright Enterprises v. Raimondo. The pending case gives the Court another opportunity to limit judicial deference to agency interpretations. The Court will hear oral argument in the case on Jan. 21, 2025, and an opinion will issue by the end of June.