Holding Court is a series by retired Rye City Court Judge Joe Latwin. Latwin retired from the court in December 2022 after thirteen years of service to the City.
What topics do you want addressed by Judge Latwin? Tell us.
By Joe Latwin
A recent U.S. Supreme Court case discussed intrusive telemarketing communications. The case involved an FCC order that interpreted the Telephone Consumer Protection Act of 1991, or TCPA. The TCPA protects businesses and consumers from intrusive telemarketing communications. The TCPA prohibits a business from sending an “unsolicited advertisement” by fax to a “telephone facsimile machine” absent an opt-out notice informing recipients that they can choose not to receive future faxes. The TCPA allows private parties to sue the sender of the unsolicited fax for damages or injunctive relief. The TCPA sets a floor of $500 in damages for each unlawful fax. A court may order treble damages if it finds a violation was willful or knowing.
McKesson Corporation, in an effort to promote itself, sent unsolicited fax advertisements to various medical practices. One medical practice received some of those faxes and sued in a class action. Some recipients (including the plaintiff) received the faxes on a traditional fax machine—the standalone device dedicated to receiving and printing faxes. But others received the faxes through online fax services, either by email or through an online portal.
In a separate litigation, another person petitioned the FCC for a declaratory ruling about whether the TCPA applies to faxes received through online fax services. The FCC issued an order interpreting the term “telephone facsimile machine” in the TCPA. The FCC ruled that “an online fax service is not a ‘telephone facsimile machine.” The FCC ruled that the TCPA would not prohibit faxes received through online fax services. The District Court deemed the FCC order “a final, binding order” that dictated the court’s interpretation of the TCPA. The District Court found under the judicial review provisions of the Hobbs Act FCC orders are “subject to the exclusive review of the court of appeals” in pre-enforcement suits and decertified the class. That left the plaintiff with winnowed-down claims based on 12 unsolicited faxes that it had received on a traditional fax machine and it was awarded a damages award of $6,000.
In 1950, Congress passed and President Truman signed the Administrative Orders Review Act, commonly known as the Hobbs Act. The Hobbs Act provides for pre-enforcement judicial review of FCC orders. To obtain review, a party must file a petition in a federal court of appeals within 60 days of the FCC order. Review under the Hobbs Act allows regulated and affected parties to obtain greater clarity about their legal rights and obligations—rather than taking their chances and hoping to prevail in later enforcement proceedings.
The Supreme Court asked what would happen if no one challenged the FCC order or a different party in a different enforcement proceeding wanted to argue the FCC incorrectly interpreted the statute. The Court said the Hobbs Act didn’t preclude such a challenge.
Since the District Court was not bound by the FCC’s interpretation of the TCPA, it should interpret the statute as courts traditionally do under ordinary principles of statutory interpretation, affording appropriate respect to the agency’s interpretation. The Supreme Court remanded the case for further proceedings consistent with its opinion.
If Congress can prohibit unsolicited faxes, why can’t it prohibit unsolicited spam telephone calls and subject these annoying interlopers into our homes to damages for the inconvenience they cause us? Why not impose on telephone carriers an obligation to prevent callers from using fake telephone numbers? Why can’t Congress do what it did with postal solicitations? If something unsolicited is sent to you by mail, it is considered as if it was a gift. Why hasn’t Congress done this? Who is Congress protecting? If they have time to enact laws naming post offices, Congress certainly has enough time to protect us from these constant annoyances.
