D.C. Circuit Hears Oral Argument
in TCPA Junk Fax Cases
On November 8, 2016, the United States Court of Appeals for the D.C. Circuit heard the much anticipated oral argument in Bais Yaakov of Spring Valley v. FCC, No. 14-1234, a consolidated appeal from Federal Communication Commission (“FCC”) rulings in a series of junk fax cases brought under the Junk Fax Prevention Act (“JFPA”) provisions of the Telephone Consumer Protection Act (“TCPA”). There were two primary issues addressed in the argument: (1) whether the FCC had statutory authority to regulate solicited faxes (i.e., faxes sent with express consent of the recipient) by requiring the inclusion of minimum “opt out” notices and (2) whether the FCC had authority to grant retroactive waivers of the “opt out” requirement to fax senders confused by the FCC’s admittedly contradictory initial guidance on whether the opt-out requirement for solicited faxes? Follow this link for a recording of the oral argument.
The argument lasted ninety minutes. The bench was “hot” from the beginning. It appears from the judges’ extensive questioning that all three members of the panel were skeptical of the FCC’s ability to grant retroactive waivers of the opt out notice requirement for solicited faxes. Two judges, however, appeared to be leaning toward holding that Congress did not provide the FCC with statutory authority to require opt-out language on “solicited” faxes in the first instance, at least not without going through a formal regulatory rule making.
The question of whether the D.C. Circuit’s eventual decision in this case will be binding on district courts outside the D.C. Circuit was raised by the Panel. While the attorneys arguing the appeal were unsure, the answer is probably yes. Where multiple petitions challenging an FCC (or other agency) regulation are consolidated in one circuit under 28 U.S.C. § 2112 – as here – the assignee circuit becomes “the sole forum for addressing … the validity of the FCC’s rules.” Peck v. Cingular Wireless, LLC, 535 F.3d 1053, 1057 (9th Cir. 2008) (quotation omitted); see also GTE S., Inc. v. Morrison, 199 F.3d 733, 743 (4th Cir. 1999) (Fourth Circuit lacked jurisdiction to review FCC’s pricing rules because petitions challenging those rules had been consolidated under Section 2122(a) and assigned to Eighth Circuit). ONRC Action v. U.S. Bureau of Reclamation, No. CIV. 97-3090-CL, 2012 WL 3526833, at *30 (D. Or. Jan. 17, 2012) (“[O]pinions issued by other Circuit Courts of Appeal deciding consolidated petitions for review of agency regulations are binding outside that circuit).”
Whatever the outcome at the D.C. Circuit, an appeal to the Supreme Court is expected.
For more information contact Bill Latham at email@example.com.
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