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Once upon a time, businesses would offer their products or services by sending you a fax advertising them. Unfortunately, if you were on the receiving end of these faxes, they tied up your phone lines and used up your paper and ink. Addressing this and other complaints, Congress passed the Telephone Consumer Protection Act (TCPA), creating a private right of action for a variety of problematic behaviors.
After PDR Network, LLC, faxed Carlton & Harris Chiropractic, Inc. an offer of a free Physicians Desk Reference, the Clinic sued under TCPA. PDR countered that its offer of a free book did not constitute a solicitation subject to the TCPA’s civil liability provision. But in 2006, the Federal Communications Commission had determined that even faxes that promote goods or services for free subject the sender to civil liability.
The Fourth Circuit held that PDR’s fax had violated the TCPA, as the FCC interprets it, and that the Hobbs Act prevented PDR from challenging the FCC’s interpretation in court. So can a federal district court review the FCC's interpretation of the TCPA? Or, because of the Hobbs Act, must a federal district court simply accept the FCC's reading the statute? These important questions are now before the Supreme Court and our experts will provide their insights heading into oral argument.
Bernard Bell, Professor of Law and Herbert Hannoch Scholar, Rutgers Law School
James Conde, Associate, Boyden Gray & Associates, PLLC
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