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TCPA Case May Affect Regulatory Guidance Deference

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An upcoming Supreme Court decision may determine if agency interpretive guidance of regulations under the Telephone Consumer Protection Act controls on issues before district courts, or whether those courts can independently interpret the act under Chevron.

In taking up Carlton & Harris Chiropractic v. PDR Network, the Court limited the case to the question of the interplay between jurisdictional constraints on district courts under the Hobbs Act and Chevron deference in the context of the TCPA. The ruling could clarify TCPA issues as well as affect future Federal Communications Commission regulations.


In PDR Network, a chiropractic office brought a putative class action against the publisher of the “Physician’s Desk Reference,” alleging it violated the TCPA by sending a fax inviting the office to reserve a free copy of the book. The office declined the offer and sued, claiming a violation of the TCPA. The publisher moved to dismiss the case, arguing the fax was not an unsolicited advertisement because the book was free. In response, the chiropractic office cited a 2006 FCC rule that states, “facsimile messages that promote goods or services even at no cost … are unsolicited advertisements under the TCPA’s definition.”

The district court found the TCPA statutory language defining an unsolicited advertisement to be unambiguous. Employing the Chevron doctrine, it held that a fax advertisement for free services could not qualify as an unsolicited advertisement, despite the earlier FCC interpretation that it could.

The Fourth Circuit reversed, ruling that the district court erred when it applied Chevron and failed to defer to the FCC’s statutory interpretation of “unsolicited advertisement” pursuant to the Hobbs Act. Under that law, only federal appellate courts have jurisdiction to determine the validity of final FCC orders and administrative rulings.


The Supreme Court’s ruling may bring clarity to the TCPA landscape that has been obscured by disparate district court rulings regarding jurisdiction and FCC interpretations of the act. The ruling may also influence future FCC regulations, such as the much-anticipated ruling on what constitutes an automatic telephone dialing system under the TCPA, and possible related court actions.

While it did not grant certiorari on the question of the Fourth Circuit’s interpretation of the 2006 FCC rule, if the Supreme Court affirms the Fourth Circuit’s decision, the FCC’s interpretive guidance that a fax promoting free goods or services is an unsolicited advertisement under the TCPA will remain intact. A reversal will allow district courts to apply Chevron analysis to the statutory language and regulations and interpretive guidance.

The contents of this article are intended to convey general information only and not to provide legal advice or opinions.

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