Telephone Consumer Protection Act
McLaughlin Chiropractic Associates Inc. v. McKesson Corp.
Date: Oct. 4, 2024
Issue: Does the Hobbs Act require district courts to follow a Federal Communications Commission (FCC) ruling that the Telephone Consumer Protection Act (TCPA) does not prohibit junk faxes received only through electronic inboxes?
Case Summary: The U.S. Supreme Court agreed to examine whether the Hobbs Act requires district courts to follow an FCC ruling that the TCPA does not prohibit junk faxes received only through electronic inboxes.
A McKesson Corporation subsidiary engaged in an advertising campaign designed to market its products and services to physician practices nationwide. The subsidiary sent multiple unsolicited advertisements to McLaughlin Chiropractic Associates via fax. Under the TCPA, sending advertisements via “telephone facsimile machine” to anyone without consent is prohibited.
In 2018, McLaughlin sued McKesson Corporation for violating the TCPA. McKesson argued its advertising plan was carried out online, which does not fall under the TCPA’s definition of “telephone facsimile machine.” The district court eventually certified a single class of all persons or entities who received faxes from McKesson from Sept. 2, 2009, to May 11, 2010, offering promotional products and services without being notified of their right to opt out of future faxes. Shortly after the class was certified, FCC issued an order to interpret the TCPA provision. In the order, FCC construed the TCPA to exclude an “online fax service” from the definition of “telephone facsimile machine.”
The U.S. Supreme Court granted McLaughlin’s certiorari petition, which argued the question the Court previously granted certiorari to resolve in PDR Network LLC v. Carlton & Harris Chiropractic Inc., still warrants review. In PDR Network, the Court granted certiorari to decide whether the Hobbs Act requires district courts to accept the FCC’s interpretation of the TCPA in private lawsuits. However, a majority of the Court was unable to reach this issue due to two unresolved preliminary questions: whether the FCC’s order was an “interpretive rule” not subject to the Hobbs Act; and whether the Hobbs Act failed to afford the petitioner “a prior and adequate opportunity for judicial review.”
McLaughlin contended the circuit split created when PDR Network was examined must be resolved. The Fourth, Ninth and Eleventh Circuits have ruled district courts cannot review FCC orders under the Hobbs Act. Conversely, the Second, Sixth and Seventh Circuits all recognize parties in a private enforcement action can challenge FCC interpretations of the TCPA. McLaughlin also highlighted the circuit split has expanded in the aftermath of PDR Network because circuit courts must now decide whether the Hobbs Act extends to FCC interpretative rules. While other circuits reject the view of the Hobbs Act making FCC orders extend to interpretative rules, the Ninth Circuit took the opposite view, finding McLaughlin was bound to the FCC’s order on this rule.
McLaughlin also argued the Ninth Circuit’s rule is wrong because the Hobbs Act does not preclude a district court in a private enforcement proceeding from being bound by an FCC interpretation of the TCPA. In Justice Brett Kavanaugh’s concurrence in PDR Network, he explained Congress did not expressly prohibit judicial review by district courts. McLaughlin noted the risk of the Hobbs Act from estopping plaintiffs with valid claims under the TCPA is significant and, under the Ninth Circuit’s construction, the Hobbs Act would force district courts to grant absolute deference to FCC orders.
Bottom Line: McLaughlin’s Merits brief is due Nov. 18, 2024.
Documents: Petition
