The FCC’s TCPA one-to-one consent rule still has the faintest of pulses as the NCLC continues to struggle to bring it back to life.

In a new filing yesterday the National Consumer Law Center has submitted a proposed petition seeking a full en banc re-hearing and characterizing the Eleventh Circuit panel’s ruling in IMC v. FCC as a departure from established judicial review norms and contrary to supreme court precedent.

As the Czar previously explained the IMC ruling is, indeed, a breathtaking departure from the rules courts would ordinarily apply to such appeals. However, this change appears to have been enabled by the recent destruction of Chevron deference and concomitant strengthening of judicial review.

The issue really boils down to this:

In the old days (last year) a court had to defer to an agency’s interpretation of vague phrases in a statute. That is no longer the case.

The IMC could held, however, that an agency had to defer to a court’s interpretation of vague phrases statute. This had never happened before.

While IMC’s approach seems permissible following the death of Chevron it by no means follows that they adopted the correct framework. Under a doctrine called Skidmore deference courts and agencies are essentially equally powerful– and if Skidmore  deference were applied IMC probably would have come out differently.

NCLC’s petition argues the Eleventh Circuit Court of Appeals–all of it–should get together and decide whether Skidmore applies here or whether IMC sets a vast new paradigm for judicial review of agency action.

Part of me kind of wants to know the answer because I’m a nerd.

But on the other hand, I don’t think lead gen is capable of handling another pendulum swing on one-to-one so let’s hope this whole thing stays dead.

Anyway you can read the whole petition here: NCLC En Banc