SCOTUS Argument Preview of PDR Network v. Carlton & Harris Chiropractic

by Chris Walker — Thursday, Mar. 21, 2019@chris_j_walker

Next week’s main adlaw event at the Supreme Court is, of course, Kisor v. Wilkie, in which the Court will decide whether to overturn Auer deference to agency regulatory interpretations.

But next week’s argument schedule also includes a pretty fascinating adlaw undercard: PDR Network v. Carlton & Harris Chiropractic. Over at SCOTUSblog, I posted a preview of the case, which is set for argument on Monday, 3/25 (my 40th birthday, no less!).

Here’s a snippet from that preview:

Did you know you can sue if you receive an unsolicited ad by fax? Under the Telephone Consumer Protection Act of 1991, you can recover $500 per offending fax. If sent willfully or knowingly, make that $1,500. Next Monday, the Supreme Court will grapple with this statute when it hears argument in PDR Network v. Carlton & Harris Chiropractic.

This is not a run-of-the-mill statutory interpretation case. It’s about administrative law. It turns out that, in 2006, the Federal Communications Commission issued an order interpreting “unsolicited advertisement” in the TCPA to include “facsimile messages that promote goods or services even at no cost, such as free magazine subscriptions, catalogs, or free consultations or seminars.” At second blush, then, maybe this case just implicates the familiar Chevron two-step dance, in which the court first assesses whether the TCPA statutory definition is ambiguous and, if so, then defers to the FCC’s interpretation so long as it’s reasonable. Some Supreme Court counsel and justices have been “hating on Chevron” of late. Perhaps this case would mark just another “milestone on Chevron’s path toward irrelevance.”

But this case isn’t even about Chevron deference or any other doctrine you’d ordinarily cover in an introductory administrative law course. Instead, it turns out that the Hobbs Act governs judicial review of agency orders interpreting the TCPA. The Hobbs Act requires an aggrieved party to seek judicial review of the agency’s final order within 60 days of its entry in the appropriate circuit court of appeals, and vests that circuit court with “exclusive jurisdiction to make and enter … a judgment determining the validity of, and enjoining, setting aside, or suspending, in whole or in part, the order of the agency.”

You can read the full preview here. I’ll return to SCOTUSblog early next week to share my reflections on the oral argument. I expect to spend a fair amount of time recapping the Justices’ interaction with Professor Aditya Bamzai’s amicus brief in the case.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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About Chris Walker

Christopher Walker is a law professor at The Ohio State University Moritz College of Law. Prior to joining the law faculty, Professor Walker clerked for Justice Anthony Kennedy of the U.S. Supreme Court and worked on the Civil Appellate Staff at the U.S. Department of Justice. His publications have appeared in the California Law Review, Michigan Law Review, Stanford Law Review, and University of Pennsylvania Law Review, among others. Outside the law school, he serves as one of forty Public Members of the Administrative Conference of the United States and as Vice-Chair of the American Bar Association’s Section on Administrative Law and Regulatory Practice. He blogs regularly at the Yale Journal on Regulation.

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