Spam Case Not Ready for Prime Time, Justices Say

WASHINGTON (CN) — The Supreme Court punted Thursday in a case where a chiropractic office that was faxed an advertisement for the Physicians’ Desk Reference, a staple of most medical offices, brought a class action decrying the message as spam.

Though the Fourth Circuit found that the fax from the PDR Network qualified as an unsolicited advertisement under the Hobbs Act, the Supreme Court ruled this morning that the case cannot advance without further consideration of certain issues.

Vacating and remanding, Justice Stephen Breyer wrote for the majority that the Fourth Circuit must take a closer look at a 2006 order from the Federal Communications Commission that defined an “unsolicited advertisement” under the Telephone Consumer Protection Act.

“As we have said many times before, we are a court of ‘review,’ not of ‘first view,’” Breyer wrote, joined in full by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elegan Kagan, along with Chief Justice John Roberts.

Breyer said it remains unclear whether the Hobbs Act “afforded PDR a ‘prior’ and ‘adequate’ opportunity for judicial review of the [the FCC] order.”

“If the answer is ‘no,’ it may be that the Administrative Procedure Act permits PDR to challenge the validity of the order in this enforcement proceeding even if the order is deemed a ‘legislative’ rule rather than an “interpretive” rule,” the opinion continues.

Justices Brett Kavanaugh concurred in the judgment, writing separately to dispute that the Hobbs Act expressly forestalls judicial review of an agency’s legal interpretations in enforcement.

“The Hobbs Act does not bar PDR from arguing that the FCC’s legal interpretation of the TCPA is incorrect,” Kavanaugh wrote, joined by Justices Samuel Alito, Neil Gorsuch and Clarence Thomas. “The District Court is not bound by the FCC’s interpretation. In an as-applied enforcement action, the district court should interpret the statute as courts traditionally do under the usual principles of statutory interpretation, affording appropriate respect to the agency’s interpretation.”

In another opinion concurring in the judgment, which Gorsuch also joined, Thomas said he found fault with an underlying premise in the case.

“The decision below rested on the assumption that Congress can constitutionally require federal courts to treat agency orders as controlling law, without regard to the text of the governing statute,” Thomas wrote.

Attorneys at Sidley Austin and Blank Rome represent PDR Network.

Carlton & Harris Chiropractic, the office behind the underlying suit, is represented by Anderson + Wanca of Rolling Meadows, Illinois. Neither office immediately has responded to requests for comment.

%d bloggers like this: