Here we go.

Let the battle begin.

Additional platitude opening lines.

We all knew–well, at least I knew–there was going to be a huge battle over the application of the Hobbs Act to FCC rulings following the death of Chevron deference. But we no one knows is where the majority of courts are going to land.

But we just received our first BIG data point on the subject–from the Chief Judge of the important N.D.Ga. (a major breeding ground for TCPA class actions.)

Backing up, a few reminders to orient:

• The TCPA is a vague statute;
• The FCC has issued hundreds of pages of orders interpreting the statute;
• Courts may or may not have to defer to these interpretive orders depending on whether the FCC’s orders are entitled to Hobbs Act deference (they are no longer entitled to Chevron deference);
• FCC rulings may or may not be entitled to Hobbs Act deference depending on:
  • How formal the ruling was;
  • What court is considering the issue.

In Radvansky v. Kendo Holdings, 2024 WL 3811996 (N.D. Ga. Aug. 13, 2024) the Court was faced with the issue of whether cellular phones can be residential phone lines for DNC purposes.

This issue has been often addressed in TCPA cases and the courts have uniformly concluded that such numbers CAN be residential lines.

But that uniformity was inspired in large part by the FCC so holding over a decade ago.

Now that Chevron is out the window courts have to struggle with this question anew– or do they?

Per the Court in Radvansky they do not, because the FCC’s rulings are entitled to Hobbs Act deference regardless:

At first glance, this case seems to turn on how the Court interprets the term “residential telephone.” Not so fast—remember, the Hobbs Act applies. The Eleventh Circuit has strictly held that “[d]istrict courts may not determine the validity of FCC orders, including by refusing to enforce an FCC interpretation, because ‘deeming 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) (alteration omitted) (quoting Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110, 1120–21 (11th Cir. 2014)). This standard is binding law that the Court must follow unless and until the Eleventh Circuit decides to revisit this issue en banc. 2

So, there is not much for this Court to do. The FCC has ruled that wireless telephone numbers on the DNC registry are presumed to be residential telephone numbers. Radvansky’s telephone number is on the DNC registry, and he alleges that he uses his phone as his personal residential number and has not used it for business or commercial purposes. Because the Court cannot “refuse to enforce an FCC interpretation,” it must consider Radvansky’s number to be a residential number. Id.

Nice and simple (and well written) analysis here. FCC speaks. Court must listen. Hobbs Act says so.

But what about the Supreme Court’s saying in PDR Resources forcing courts to analyze the formalities used to adopt the order in question? Here the Court takes the easy road and simply refuses to apply the Supreme Court’s musings on the subject:

Kendo disputes this, arguing that that the 2003 FCC order is an interpretive rule that is not binding on the Court. This is incorrect under Eleventh Circuit law and is a mischaracterization of Supreme Court precedent. The Supreme Court has mused that FCC orders that are interpretive rules may not be binding on a court under the Hobbs Act. But it has not decided the issue yet. See PDR Network, 588 U.S. at 7 (remanding case to district court to determine whether relevant FCC order was a legislative or interpretive rule, noting that “[i]f the relevant portion of the 2006 Order is the equivalent of an ‘interpretive rule,’ it may not be binding on a district court, and a district court therefore may not be required to adhere to it” while also cautioning that “[w]e say ‘may’ because we do not definitively resolve these issues here”).

The Eleventh Circuit has clearly held that “an agency’s interpretation of federal law in a final order is subject to only a single 60-day window for judicial review in a single circuit-court proceeding, outside of which no party to any proceeding in any court may question the agency’s interpretation.” Gorss, 931 F.3d at 1106 (Pryor, J., concurring). The 2003 FCC order is a final order, and thus the Court cannot review it under the Eleventh Circuit’s interpretation of the Hobbs Act, regardless of whether it is legislative or interpretive.

Wow.

This is a bold, simple, and perhaps correct line of reasoning here. The Court simply disregards PDR Resources as so much “might have been” and makes a beeline for the previously existing Eleventh Circuit case law on the subject.

Now it must be pointed out that a different panel of the Eleventh Circuit Court of Appeals has begged for a re-do finding that PDR Resources killed the Hobbs Act.

But the Hon. Chief Judge was simply not impressed. The Courts conclusion in Radvansky– all final FCC TCPA orders are entitled to protection under the Hobbs Act. Period.

The Radvansky ruling is absolutely fascinating to me. If other courts adopt this line of reasoning it will gift the FCC tremendous power, and would certainly make my life easier as we all struggle with which rulings are, and are not, entitled to deference in the brave new post-Loper world.

In the end the Court concluded residential phones can include cell phones–which is not at all surprising–but the Court’s outright refusal to deviate from FCC rulings on the subject is the real takeaway here.

Will be VERY interesting to see if other courts follow this influential judge’s opinion.