It happened.

In LOPER BRIGHT ENTERPRISES v. RAIMONDO (full opinion here) the U.S. Supreme Court just overturned one of the most revered and often-applied doctrine in American legal jurisprudence.

This was hardly a surprise. Basically everyone predicted the Roberts court would take its first opportunity to overturn Chevron deference. The only thing standing in its way was 40 years of precedent, multiple Supreme Court decisions and hundreds of cases applying the doctrine.

But that never slowed down this Court. The Court that famously struck down Roe v. Wade and less famously has struck down a host of well-worn law (and shredded the first amendment) in recent rulings.

Somehow, though, the destruction of Chevron deference hits closer to home. As an attorney practicing in an area of law–telecom–that is deeply impacted by the interpretive rulings of the FCC the notion of deferring to the Commission on issues of statutory ambiguity had an almost moral quality to it.

It was right to interpret a statute consistent with the Commission’s interpretation and wrong to interpret the statute otherwise.

Now, however, we have an entirely new paradigm. One that might upend everything we know about how the Telephone Consumer Protection Act (TCPA)–and thousands of other laws–ae interpreted. Or then again, perhaps little will change in the TCPAWorld specifically (even though the law will certainly be in tumult elsewhere.)

So what is Chevron?

Chevron is the doctrine that administrative agencies are tasked with using their expertise to interpret the intention of Congress when Congress places interpretation of a vague statute within the agency’s purview. It is an inherent delegation doctrine that forces courts to interpret statutes in the way the agency articulates is the correct interpretation. The idea is–or, was–that the agency’s expertise and experience best aligns with Congressional intent for implementing the statute.

Why does it matter?

Because Americans keep electing non-lawyers to write their laws.

Year in, year out, we elect non-attorneys to be “lawmakers.” (Less than 1/3 of the members of Congress–the people who write our laws–have a law degree. Absolutely nuts.) And as a result the laws that govern our nation are increasingly incoherent, disjointed and difficult to fit together.

So basically every single statute is in the hands of some government agency or another to interpret and make sense of. And that’s a very good thing. Or was.

Why?

Because although there are over a dozen federal agencies with interpretive powers it is easy enough to read their interpretive rulings–which must be made with notice and comment from the public–understand them, and prepare for them.

For instance, the FCC not-long ago issued a massive order upending small businesses. Its a headache inducing change. But it is one that the Commission gave businesses a year to prepare for.

Plus once a ruling is issued by an agency it is (was) applicable across the nation assuring uniformity of application. That vague statute just became clear for everyone. And we all have to play by the same rules… even if they weren’t very good rules. And that, as I viewed it, was the closest thing to morality you can find in our secular *cough* legal system.

Courts operate very differently.

Courts operate without any notice to anyone other than the parties before them. It is very difficult to keep track of their cases–there are 890 individual judges in this nation with the power to make law. And their rulings can be applied retroactively at times. Meaning something that was legal when you did it can become illegal suddenly.

TCPAWorld denizens have lived through the rough seas of judicial interpretations for years. They know well the shifting patchwork of decisions and how they can impact livelihoods (and lives) seemingly on a moment’s notice. They’ve seen the rise and ebb of autodialer litigation–with judges sitting in neighboring courthouses disagreeing with one another. With pure circuit splits. With rules that apply to one state, but not another. With leaping, springing liability that came from nowhere.

We’ve seen one court say something is perfectly legal, while another court issues a billion-dollar judgment for the same conduct.

Its nuts. Anarchy. Chaos.

Its what happens when different judges can interpret statutes however they individually want to and without any regard to a broader nationwide interpretation.

And that is exactly what the Supreme Court just gifted the nation.

To put a finer point on matters, at the Supreme Court level outcomes are somewhat predictable. Rulings can be anticipated based on likely “interpretations” driven by known philosophies and–absurdly- religious beliefs. This makes outcomes somewhat predictable (as I already mentioned, everyone saw the death of Chevron coming.)

At the lower levels, however, it is incredibly difficult–perhaps impossible–to know what any individual judge might do on a matter. This makes predicting outcomes incredibly difficult. And in my line of work–where every case I handle is theoretically worth hundreds of millions or billions of dollars–the pressure to settle cases only increases with uncertainty.

And then there are the constitutional dimensions.

A man ought to know if his speech his legal or not at the time it is made.

The TCPA, in particular, dictates the contours of lawful speech. Yet the courts decide only after the speech occurs if it was legal or not by defining the parameters of its VERY VAGUE provisions.

This was a problem even when the FCC’s interpretations were fulling binding, but it is mind numbingly difficult now.

Or perhaps it isn’t. (More uncertainty.)

The FCC’s rulings reside within a secondary bubble that is deeper and more impenetrable than Chevron. Something called the Hobbs Act seemingly strips courts of jurisdiction to re-consider or annul the work of the Commission in interpreting the Communications Act–including the TCPA.

The Loper Bright court used the APA to strike down Chevron–its ultimate conclusion was the the federal statute governing judicial review of agency action places the onus on courts to review legal issues, a conclusion viewed as inconsistent with Chevron deference–but the same court has already concluded the Hobbs Act lives alongside the APA, at least in some instances.

So whereas companies subject to the whims of many regulators–think FTC, CFPB, EPA, etc.– just drew fresh, chaotic, fresh air, we here in TCPAWorld may still have business as usual.

Except, maybe not.

Everything, it seems, is back on the table.

Are text messages covered by the TCPA? That rule originally came from an FCC opinion that seems interpretive, and not legislative, in nature. The Ninth Circuit’s Satterfield opinion–the fountainhead of all text message jurisprudence–applied (you guessed it) Chevron deference!

Can express consent be revoked by any reasonable means? Same thing. Van Patten v. Vertical Fitness Group, LLC, 847 F. 3d 1037 (2017 9th Cir)–the lead case on the subject–applied… Chevron deference.

Then again, other courts have looked at these same FCC rulings and applied stronger Hobbs Act deference. So how individual judges view the application of Hobbs Act vs. Chevron will now control the scope of the TCPA.

Get it? Interpretations of applicable interpretive guides will determine open, or close, the door to judicial interpretation of the TCPA.

FUN.

Not fun.

But believe me, things are much worse for companies regulated by other commissions. And none of this is a good thing.

Yes, individual companies presently facing heavy-handed penalties from run-away agencies can now breathe a sigh of relief–and much of the CFPB’s recent craziness is now under scrutiny–but all companies need to know what the law is to help them comply and operationalize and avoid risk.

The death of Chevron may give some companies the gift of a second-chance, therefore, but it gives all companies the penalty of uncertainty.

And with an enfeebled Congress lacking lawyers or the wherewithal to form coherent sentences–and the tragic debate last night– the rickshaw nature of our laws seems assured for the time being.