/>iWas amazing wrapping up the big TCPA Summit yesterday. Two days on stage and learned a ton.
One of the biggest topics of debate was the roll the Hobbs Act would–or perhaps, more accurately–would not play in 2025. With the Supreme Court set to potentially set aside the primary vehicle for FCC deference in TCPAWorld we may see the collapse of volumes of regulation in the space.
Truly mind blogging to consider the consequences.
But for now, at least, we don’t need to. We have a nice predictable body of law to apply– even if we dont like the law very much.
Apropos, in Buxton v. Full Sail, Inc., 2024 WL 5057222 (M.D. Fl. Dec. 10, 2024) the defendant moved to dismiss a DNC case arguing that cell phones are not residential lines under the TCPA’s DNC rules. The Court rejected that argument easily citing the Hobbs Act:
The Hobbs Act, or Administrative Orders Review Act, provides that the federal appellate courts have “exclusive jurisdiction to…determine the validity of…all final orders of the [FCC] made reviewable by” 47 U.S.C. § 402(a). 28 U.S.C. § 2342(1). The Eleventh Circuit has explained in TCPA cases that “[d]istrict courts may not determine the validity of FCC orders, including by refusing to enforce an FCC interpretation, because ‘[d]eeming agency action invalid or ineffective is precisely the sort of review the Hobbs Act delegates to the courts of appeals in cases challenging final FCC orders.’ ” Murphy v. DCI Biologicals Orlando, LLC, 797 F.3d 1302, 1307 (11th Cir. 2015) (quoting Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110, 1119–20 (11th Cir. 2014)). Accordingly, this court lacks jurisdiction to entertain Defendants’ argument that the FCC exceeded its authority when it defined residential subscribers to include cell phone users. See id. (“determin[ing] that the district court correctly refused to entertain arguments regarding the validity of [an]…FCC [o]rder”); Radvansky v. Kendo Holdings, Inc., No. 3:23-cv-214 TCB, 2024 U.S. Dist. LEXIS 145932, at *12 (N.D. Ga. Aug. 13, 2024) (“Because the 2003 FCC order applies to section 227(c), the [c]ourt must defer to the FCC’s interpretation of ‘residential subscribers.’ Many other courts are in accord.” (collecting cases)).
Easy, breezy, predictable. Even if that’s not what the defendant wanted in this case.
I will note that it probably didn’t help that defendant moved to dismiss a claim that didn’t even exist. Apparently defendant challenged the complaint’s allegations of ATDS usage even though no claim under 227(b):
Additionally, Defendants maintain that to the extent the amended complaint brings a claim under 47 U.S.C. § 227(b), its allegations about Defendants’ automatic telephone dialing system are insufficient. (Dkt. 67 at 14–15; Dkt. 68 at 2.) Plaintiff responds that the amended complaint does not assert a claim under section 227(b). (Dkt. 74 at 18.) Because the causes of action set out in the amended complaint do not rely on section 227(b), (see Dkt. 32 at 25–26), the court denies Defendants’ motion in this respect.
What a waste of time. Hope the client got a refund for the needless billing here. My goodness.
One last note, this is another third-party lead gen case. The Office Gurus apparently made the call at issue and transferred to Full Sail– but the court had no problem keeping Full Sail in the case on a vicarious liability theory– which is part of a continuing trend we discussed at the TCPA summit.
