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Brief for Resp'ts - Mark Leyse v. Clear Channel Broad. (Supreme Court)

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Released: June 23, 2014
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No. 13-1273

I

n the Supreme Court of the United State

s

MARK LEYSE, PETITIONER

v.

CLEAR CHANNEL BROADCASTING, INC., ET AL.

ON PETITION FOR A WRIT OF CERTIORAR

I

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT IN

OPPOSITION

DONALD B. VERRILLI, JR.

JONATHAN B. SALLET

Solicitor General

General Counsel

Counsel of Record

Department of Justice

DAVID M. GOSSETT

Washington, D.C. 20530-0001

Acting Deputy General

SupremeCtBriefs@usdoj.gov

Counsel

(202) 514-2217

JACOB M. LEWIS

Associate General Counsel

C. GREY PASH, JR.

Counsel

Federal Communications

Commission

Washington, D.C. 20554

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QUESTIONS PRESENTED

1. Whether a prerecorded telephone message from

a local radio station to a residential phone line gener-

ally promoting the radio station violates the Tele-

phone Consumer Protection Act of 1991 (TCPA), Pub.

L. No. 102-243, 105 Stat. 2394, and the implementing

regulations of the Federal Communications Commis-

sion (FCC).

2. Whether the district court lacked jurisdiction to

consider the validity of the FCC regulations imple-

menting the TCPA, in light of the exclusive jurisdic-

tion of the courts of appeals “to enjoin, set aside, sus-

pend (in whole or in part), or to determine the validity

of * * * all final orders” of the FCC. 28 U.S.C. 2342

and (1).

(I)

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PARTIES TO THE PROCEEDING

In addition to the parties listed in the caption, the

Federal Communications Commission intervened in

the court of appeals and is a respondent in this Court.

(II)

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TABLE OF CONTENTS

Page

Opinions below ................................................................................ 1

Jurisdiction ...................................................................................... 1

Statement ......................................................................................... 2

A

rgument ......................................................................................... 8

Conclusion ...................................................................................... 14

TABLE OF AUTHORITIES

Cases:

Bywater Neighborhood Ass’n v. Tricarico, 879 F.2d

165 (5th Cir. 1989), cert. denied, 494 U.S. 1004

(1990) ...................................................................................... 12

CE Designs Ltd. v. Prism Bus. Media, Inc., 606 F.3d

443 (7th Cir. 2010), cert. denied, 131 S. Ct. 933

(2011) ................................................................................ 10, 11

Chase Bank USA, N.A. v. McCoy, 131 S. Ct. 871

(2011) .................................................................................. 9, 11

City of Peoria v. Gen. Elec. Cablevision Corp., 690

F.2d 116 (7th Cir. 1982) ................................................. 10, 12

Daniels v. Union Pac. R. Co., 530 F.3d 936 (D.C. Cir.

2008) ....................................................................................... 12

FCC v. ITT World Commnc’n, Inc., 466 U.S. 463

(1984) ................................................................................ 10, 11

Leyse v. Clear Channel Broad., Inc.,

No. 05 CV 6031 HB, 2006 WL 23480

(S.D.N.Y. 2006), aff’d, 301 Fed. Appx. 20

(2d Cir. 2008) ....................................................................... 4, 5

Mims v. Arrow Fin. Servs., 132 S. Ct. 740 (2012) ................. 4

Nack v. Walberg, 715 F.3d 680 (8th Cir. 2013),

cert. denied, 134 S. Ct 1539 (2014) ..................................... 11

NextWave Personal Commnc’n, In re, 200 F.3d 43

(2d Cir. 1999), cert. denied, 531 U.S. 924 (2000) ............... 12

(III)

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IV

Cases—Continued: Page

Qwest Corp. v. Public Utils. Comm’n, 479 F.3d 1184

(10th Cir. 2007) ...................................................................... 11

Self v. BellSouth Mobility, Inc., 700 F.453

(11th Cir. 2012) ...................................................................... 11

Shady Grove Orthopedic Assocs., P.A. v. Allstate

Ins. Co., 130 S. Ct. 1431 (2010) .............................................. 6

Telecommunications Research & Action Ctr. v. FCC,

750 F.2d 70 (D.C. Cir. 1984), cert. denied, 490 U.S.

1039 (1989) ......................................................................... 9, 12

United States v. Any & All Radio Station Trans-

mission Equip., 207 F.3d 458 (8th Cir. 2000),

cert. denied, 531 U.S. 1071 (2001) ....................................... 11

United States v. Dunifer, 219 F.3d 1004 (9th Cir.

2000) ....................................................................................... 12

United States v. Interlink Sys., Inc., 984 F.2d 79

(2d Cir. 1993) ......................................................................... 12

US West Commc’ns, Inc. v. Hamilton, 224 F.3d 1049

(9th Cir. 2000) .......................................................................... 9

Vonage Holdings Corp. v. Minnesota PUC, 394 F.3d

568 (8th Cir. 2004) ................................................................. 12

Walberg v. Nack, 134 S. Ct. 1539 (2014) ............................... 12

Statutes and regulations:

Communications Act of 1934, 47 U.S.C. 151 et seq.:

47 U.S.C. 402(a) ............................................................... 3, 9

47 U.S.C. 402(b) ................................................................... 3

Hobbs Act, 28 U.S.C. 2341, et seq.:

28 U.S.C. 2342 and (1)............................................... 3, 9, 10

28 U.S.C. 2344 ...................................................................... 4

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V

Statutes and regulations—Continued:

Page

Telephone Consumer Protection Act of 1991, Pub. L.

102-243, 105 Stat. 2394, 47 U.S.C. 227 et seq.:

47 U.S.C. 227(b)(1)(A)-(C) .................................................. 2

47 U.S.C. 227(b)(2) .............................................................. 2

47 U.S.C. 227(b)(2)(B)(ii) .................................................... 2

47 U.S.C. 227(b)(3) .............................................................. 4

47 U.S.C. 227(c)(5) ............................................................... 4

47 U.S.C. 227(g) and (e)(6) ................................................. 4

47 U.S.C. 227(g)(7) .............................................................. 4

28 U.S.C. 1332(d)(2)(A) ............................................................. 5

47 C.F.R.:

Section 1.2 .......................................................................... 11

Section 1.401 ...................................................................... 11

Miscellaneous:

Rules and Regulations Implementing the Telephone

Consumer Protection Act of 1991:

7 F.C.C.R. 8752 (1992) ........................................................ 2

18 F.C.C.R. 14014 (2003) ................................................ 2, 8

20 F.C.C.R. 3788 (2005) ...................................................... 3

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I

n the Supreme Court of the United State

s

No. 13-1273

MARK LEYSE, PETITIONER

v.

CLEAR CHANNEL BROADCASTING, INC., ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT IN

OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-

33a) is not published in the Federal Reporter but is

reprinted in 545 Fed. Appx. 444. An earlier, super-

seded opinion of the court of appeals (Pet. App. 34a-

71a) is reported at 697 F.3d 360. The opinion and

order of the district court (Pet. App. 72a-79a) is not

reported in the Federal Supplement but is available at

2010 WL 2253646.

JURISDICTION

The amended judgment of the court of appeals was

entered on November 5, 2013. A petition for rehear-

ing was denied on January 23, 2014 (Pet. App. 80a-

81a). The petition for a writ of certiorari was filed on

April 17, 2014. The jurisdiction of this Court is in-

voked under 28 U.S.C. 1254(1).

(1)

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2

STATEMENT

1. The Telephone Consumer Protection Act of 1991

(TCPA), Pub. L. No. 102-243, 105 Stat. 2394, prohibits

specific types of telephone calls using automatic tele-

phone dialing equipment or prerecorded messages—

including calls to mobile phones and calls to residen-

tial lines without the recipient’s consent—as well as

unsolicited advertisements transmitted by fax.

47 U.S.C. 227(b)(1)(A)-(C). The TCPA authorizes the

Federal Communications Commission (Commission

or FCC) to prescribe implementing regulations.

47 U.S.C. 227(b)(2). In particular, the Commission

may by regulation exempt from the general prohibi-

tion on calls to residential lines “such classes or cate-

gories of calls made for commercial purposes as the

Commission determines (I) will not adversely affect

the privacy rights that this section is intended to pro-

tect; and (II) do not include the transmission of any

unsolicited advertisement.” 47 U.S.C. 227(b)(2)(B)(ii).

Exercising that exemption authority, the Commis-

sion has excepted from the statutory ban on unsolicit-

ed calls using automatic dialers or prerecorded mes-

sages calls that are “made for a commercial purpose,

but d[o] not include the transmission of any unsolicit-

ed advertisement.” Rules and Regulations Imple-

menting the Telephone Consumer Protection Act of

1991, 7 FCC Rcd. 8752, 8791 (1992) (1992 TCPA Or-

der). In 2003, the Commission clarified how that gen-

eral rule applies to certain prerecorded telephone

messages from over-the-air television and radio

broadcasters. See Rules and Regulations Implement-

ing the Telephone Consumer Protection Act of 1991,

18 FCC Rcd. 14014, 14100-14101 ¶ 145 (2003) (2003

TCPA Order). The Commission explained that, “if the

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3

purpose of the message is merely to invite a consumer

to listen to or view a broadcast, such message is per-

mitted under the current rules as a commercial call

that ‘does not include the transmission of any unsolic-

ited advertisement,’id. at 14101 ¶ 145, and thus

would be exempt from the general ban. No party

sought judicial review of the 2003 TCPA Order. One

party asked the Commission to reconsider its decision,

but the Commission declined and reaffirmed its prior

determination. Rules and Regulations Implementing

the Telephone Consumer Protection Act of 1991, 20

FCC Rcd. 3788, 3805-3806 ¶¶ 42-44 (2005).

2. The Communications Act of 1934, 47 U.S.C. 151

et seq., establishes the exclusive mechanism for chal-

lenging the validity of orders issued by the FCC.

That statute specifies that “[a]ny proceeding to enjoin,

set aside, annul, or suspend any order of the Commis-

sion under this chapter * * * shall be brought as

provided by and in the manner prescribed in chapter

158 of title 28,” United States Code. 47 U.S.C. 402(a).1

The cross-referenced chapter of the United States

Code, the Administrative Orders Review Act (Hobbs

Act), provides in relevant part that “[t]he court of

appeals * * * has exclusive jurisdiction to enjoin,

set aside, suspend (in whole or in part), or to deter-

mine the validity of * * * all final orders of the

Federal Communications Commission made reviewa-

ble by [47 U.S.C. 402(a)].” 28 U.S.C. 2342 and (1).

The Hobbs Act specifies that “[a]ny party aggrieved

1 Judicial review of certain specified FCC decisions is governed

by 47 U.S.C. 402(b), which vests exclusive jurisdiction in the Court

of Appeals for the District of Columbia Circuit. Because the FCC

orders at issue in this case are not among those specified decisions,

Section 402(b) is inapplicable here.

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4

by the [FCC’s] final order may, within 60 days after

its entry, file a petition to review the order in the

court of appeals wherein venue lies.” 28 U.S.C. 2344.

3. This case involves a private TCPA suit brought

against a radio broadcaster. The TCPA creates pri-

vate rights of action to enforce certain portions of the

Act. See 47 U.S.C. 227(b)(3) and (c)(5). Federal and

state courts have concurrent jurisdiction over private

lawsuits arising under the TCPA. See Mims v. Arrow

Fin. Servs., 132 S. Ct. 740 (2012).2

Petitioner, a New York resident, alleges that in

2005 he received a prerecorded telephone message on

his residential telephone line from a local radio sta-

tion. The message promoted the station’s program-

ming and announced that recipients could call in at a

specified time for a chance to win a prize. See Pet.

App. 3a.

a. In 2005, petitioner filed a complaint in the Unit-

ed States District Court for the Southern District of

New York. That court dismissed the complaint for

failure to state a claim on which relief could be grant-

ed. See Leyse v. Clear Channel Broad., Inc., No. 05

CV 6031 HB, 2006 WL 23480 (S.D.N.Y. 2006), aff’d,

301 Fed. Appx. 20 (2d Cir. 2008). The court found

that, in the 2003 TCPA Order, the Commission had

“exempted from [Section] 227 the type of prerecorded

call at issue here as neither an unsolicited advertise-

ment nor a telephone solicitation.” Id. at *2. The

court deferred to that Commission determination and

dismissed the complaint on the merits. Id. at *3-*4.

2 The FCC also has authority to enforce the TCPA, 47 U.S.C.

227(g)(7), as do state attorneys general. See 47 U.S.C. 227(g) and

(e)(6).

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5

On appeal, the Second Circuit asked for the FCC’s

views on several questions presented by the case. See

Pet. App. 82a. The Commission’s response explained

that a telephone message of this type, which “contains

both an invitation to tune into a free radio broadcast

at a particular time in order to win a prize and a gen-

eral promotion for the radio station * * * is permit-

ted under the Commission’s rules * * * [and] is not

actionable under the TCPA.” Id. at 92a. The Com-

mission noted its prior determinations in the 2003 and

2005 rulemaking proceedings that, because over-the-

air broadcasting is free to listeners, “neither tele-

phone messages containing general promotional an-

nouncements for broadcast stations nor messages

inviting the recipient to listen to specific broadcasts

are ‘unsolicited advertisements.’Id. at 94a; see id. at

87a-88a. The FCC also argued that its “orders are

consistent with the TCPA and are otherwise reasona-

ble.” Id. at 93a. The Commission further explained,

however, that “established legal doctrine prohibit[ed]

[the Second Circuit] from reviewing the Commission’s

TCPA Orders by way of collateral attack in a suit

between private parties.” Ibid.

The Second Circuit affirmed dismissal of the com-

plaint on “alternate grounds—namely, there is no

subject matter jurisdiction.” Leyse, 301 Fed. Appx. at

21-22. The court held that the only basis for jurisdic-

tion asserted by petitioner, 28 U.S.C. 1332(d)(2)(A)

(creating federal jurisdiction over certain class ac-

tions), was unavailable because New York law did not

permit a class action for statutory damages under the

TCPA. See Leyse, 301 Fed. Appx. at 21-22.

b. Four months later, petitioner filed a putative

class action under the TCPA in the United States

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6

District Court for the Southern District of Ohio

against the same defendants based on the same prere-

corded telephone message. Pet. App. 4a, 74a.

The district court granted defendants’ motion to

dismiss. See Pet. App. 72a-79a.3 The court explained

that the FCC regulations exempted from the TCPA

calls that both announce a contest and contain a gen-

eral promotion for a radio station. See id. at 77a. The

court held that the FCC’s interpretation of the TCPA

(as embodied in its regulations) was entitled to defer-

ence, and the court found that interpretation to be

reasonable. Id. at 77a-79a.

c. The court of appeals affirmed. Pet. App. 34a-

71a. The court held that the call at issue fell within

the FCC’s regulatory exemption from the TCPA’s

prerecorded call prohibitions, id. at 47a, and that the

regulatory exemption was a reasonable exercise of the

Commission’s delegated authority to implement the

TCPA, id. at 58a. In reaching the latter conclusion,

the court rejected the argument that the Hobbs Act

precluded it from considering the validity of the

FCC’s implementing regulations in this case, which

did not arise under that special review statute. Id. at

58a-70a.

d. The FCC, which had not been a party to this

private action, became aware of the court of appeals’

decision. The Commission sought to intervene for the

purpose of seeking rehearing in order to argue that

the district court lacked jurisdiction to consider the

validity of the FCC regulations. See Mot. for Leave to

3 The district court held that this Court’s decision in Shady

Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393

(2010), had removed the impediment to subject matter jurisdiction

previously identified by the Second Circuit. See Pet. App. 76a n.1.

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7

Intervene of the Fed. Commc’ns Comm’n 2 (Sept. 19,

2012). The court of appeals granted the motion to

intervene, 10-3739 Docket entry No. (Docket entry) 56

(Sept. 27, 2012), and allowed the FCC to file a petition

for rehearing. In that petition, the Commission ar-

gued that, although the district court had jurisdiction

to consider the legality of the defendants’ telephone

call under the TCPA and the FCC’s implementing

regulations, it lacked jurisdiction to consider the ar-

gument that the FCC regulations were invalid.

The court of appeals panel subsequently issued an

amended opinion. Pet. App. 1a-33a. As before, the

court held that the prerecorded telephone message

about which petitioner complained came within the

category of calls that the FCC had exempted from the

TCPA’s prohibition. Id. at 7a-16a. Contrary to its

previous determination, however, the court also held

that “the district court did not have subject matter

jurisdiction to consider [petitioner’s] arguments about

the procedural invalidity of the FCC regulations”

because exclusive jurisdiction to consider such chal-

lenges has been committed by the Hobbs Act to the

courts of appeals. Id. at 2a, 16a-33a.

After the court issued the amended opinion, the

FCC withdrew its petition for rehearing, Docket entry

No. 111 (Nov. 15, 2013), and the court denied petition-

er’s petition for rehearing, Pet. App. 80a.4

4 The court of appeals directed that the amended opinion not be

published. See Pet. App. 1a n.*; see also Docket Entry 119 (Jan. 2,

2014) (denying the FCC’s subsequent motion that opinion be

published).

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8

ARGUMENT

The unpublished decision of the court of appeals is

correct and does not conflict with any decision of this

Court or another court of appeals. Earlier this year,

the Court denied a petition for a writ of certiorari

raising the same jurisdictional question that is pre-

sented here, and there is no reason for a different

result in this case. Further review is not warranted.

1. Petitioner contends (Pet. 11-12) that the part of

the prerecorded call that he received from a New

York radio station promoting that station was outside

the scope of the regulatory exemption promulgated by

the FCC under its authority delegated by the TCPA.

The fact-specific question whether the court of ap-

peals correctly applied the FCC’s regulatory exemp-

tion is not an issue of sufficient importance to warrant

further review.

In any event, the court of appeals correctly held

that the “call fits within the TCPA exemption created

by the FCC.” Pet. App. 16a. The FCC explained in

2003 that a telephone call from a television or radio

station whose purpose is “merely [to] invite a consum-

er to listen to or view a broadcast” is not a “telephone

solicitation” within the TCPA restrictions. 2003

TCPA Order, 18 FCC Rcd. at 14101 ¶ 145. As the

court noted, the FCC again considered this question

in 2005 and “reaffirm[ed] its position exempting pre-

recorded calls that invited a ‘consumer to listen to or

view a broadcast’ from §227(b)’s prohibition.” Pet.

App. 14a. In addition, the court of appeals noted that

the “FCC has even opined in its letter to the Second

Circuit that the exact call at issue in this case * * *

is exempt and therefore permissible under the

TCPA.” Ibid.; see id. at 82a, 97a-98a. The FCC’s

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9

analysis of the applicability of its own regulations to

the circumstances presented here is, at the least,

reasonable. See Chase Bank USA, N.A. v. McCoy,

131 S. Ct. 871, 880 (2011).

2. Petitioner contends (Pet. 13-25) that the Hobbs

Act did not prevent the district court from questioning

the validity of the FCC regulation at issue. The court

of appeals’ interpretation of the Hobbs Act is correct

and consistent with that of every other court of ap-

peals that has addressed the issue.

a. Section 402(a) of the Communications Act,

47 U.S.C. 402(a), specifies that (with certain excep-

tions not applicable here) any challenge to a final

order of the FCC must be brought under the Hobbs

Act, 28 U.S.C. 2341 et seq. The Hobbs Act, in turn,

gives the courts of appeals “exclusive jurisdiction to

enjoin, set aside, suspend (in whole or in part), or to

determine the validity of” such orders. 28 U.S.C.

2342(1) (emphases added). Contrary to petitioner’s

contention (Pet. 22-24), FCC orders adopting rules,

even those embodying interpretive rulings, are “or-

ders” subject to review under the Hobbs Act. United

States West Commc’ns, Inc. v. Hamilton, 224 F.3d

1049, 1055 (9th Cir. 2000).

Under this review scheme, a party wishing to chal-

lenge action by the Commission must file a petition for

review in the appropriate court of appeals within 60

days of the action’s publication in the Federal Regis-

ter. See 28 U.S.C. 2342(1); 47 U.S.C. 402(a). “[A]

statute which vests jurisdiction in a particular court

cuts off original jurisdiction in other courts in all cases

covered by that statute.” Telecommunications Re-

search and Action Ctr. v. FCC, 750 F.2d 70, 77 (D.C.

Cir. 1984) (discussing the same Communications Act

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10

scheme), cert. denied, 410 U.S. 1039 (1989); see FCC v.

ITT World Commc’ns, Inc., 466 U.S. 463, 468 (1984)

(explaining that the “appropriate procedure for ob-

taining judicial review of the agency’s disposition of

[regulatory] issues [is] appeal to the Court of Appeals

as provided by statute”); Pet. App. 32a.

Petitioner contends that his complaint was not sub-

ject to the Hobbs Act because it was brought “to ob-

tain statutory relief from respondents, not to ‘enjoin,

set aside, annul or suspend’ an agency’s order.” Pet.

13 (capitalization altered). But neither the Communi-

cations Act nor the Hobbs Act suggests that jurisdic-

tion should turn on the identity of the defendant, or on

whether a suit directly challenges the validity of a

Commission regulation. The Hobbs Act’s jurisdiction-

al limitations are “equally applicable whether [a party]

wants to challenge the rule directly . . . or indi-

rectly, by suing someone who can be expected to set

up the rule as a defense in the suit.” CE Designs Ltd.

v. Prism Bus. Media, Inc., 606 F.3d 443, 448 (7th Cir.

2010) (quoting City of Peoria v. General Elec. Ca-

blevision Corp., 690 F.2d 116, 120 (7th Cir. 1982))

(alterations in original), cert. denied, 131 S. Ct. 933

(2011).

It is clear from petitioner’s filings in the court of

appeals that the alleged invalidity of the FCC’s regu-

lations was critical to the success of his lawsuit. See,

e.g., Pet. C.A. Br. 15-40. In that circumstance, the

Hobbs Act scheme precludes collateral attack on the

FCC’s order. If the effect of the suit is to invite the

reviewing court to “determine the validity of [a] final

order[]” of the FCC, 28 U.S.C. 2342(1), a district court

does not have jurisdiction to consider that claim.

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11

The fact that “the FCC was not a party” to peti-

tioner’s lawsuit (Pet. 16) is likewise irrelevant. That a

challenge to an FCC order “arises in a dispute be-

tween private parties makes no difference.” CE De-

signs, 606 F.3d at 448. “To hold otherwise merely

because the [TCPA] issue has arisen in private litiga-

tion would permit an end-run around the administra-

tive review mandated by the Hobbs Act.” Nack v.

Walberg, 715 F.3d 680, 686 (8th Cir. 2013), cert. de-

nied, 134 S. Ct. 1539 (2014).

Contrary to petitioner’s view, the (initial) absence

of the FCC as a party in this case underscores the

practical wisdom of the Hobbs Act’s scheme of exclu-

sive jurisdiction. The FCC was not even aware of this

case until after the panel issued its first decision, even

though the legality of its regulations was a central

issue. The jurisdictional scheme enacted by Congress

ensures that the FCC, and not just private parties

named as defendants in litigation, will be in a position

to defend the validity of FCC actions.5

b. The court of appeals’ resolution of the jurisdic-

tional question presented here is consistent with the

decisions of all other courts of appeals to have ad-

dressed the issue. See, e.g., Self v. BellSouth Mobili-

ty, Inc., 700 F.3d 453, 461-464 (11th Cir. 2012); Qwest

5 Those dissatisfied with existing Commission orders are not

without recourse. As the court of appeals recognized, if a party

wishes to challenge the lawfulness of an FCC regulation after the

60-day period for direct Hobbs Act review has expired, it may

either petition the FCC for a declaratory ruling, 47 C.F.R. 1.2,

or ask the agency to initiate a new rulemaking proceeding,

47 C.F.R. 1.401. Pet. App. 32a; see ITT World Commc’ns, 466

U.S. at 468 n.5; City of Peoria, 690 F.2d at 121; United States v.

Any and All Radio Station Transmission Equip., 207 F.3d 458,

463 (8th Cir. 2000) (en banc), cert. denied, 531 U.S. 1071 (2001).

image18-00.jpg612x792

12

Corp. v. Public Utils. Comm’n, 479 F.3d 1184, 1192 n.6

(10th Cir. 2007); Vonage Holdings Corp. v. Minnesota

PUC, 394 F.3d 568, 569 (8th Cir. 2004) (“No collateral

attacks on the FCC order are permitted” in private-

party litigation.); United States v. Dunifer, 219 F.3d

1004, 1007 (9th Cir. 2000) (“By its terms, [the stat-

ute’s] jurisdictional limitations apply as much * * *

to affirmative defenses as to offensive claims.”); In re

NextWave Personal Commc’ns, 200 F.3d 43, 54 (2d

Cir. 1999) (Because “jurisdiction over claims brought

against the FCC in its regulatory capacity lies exclu-

sively in the federal courts of appeals,” a district court

“lack[s] jurisdiction to decide” cases arising out of

FCC orders.), cert. denied, 531 U.S. 924 (2000); By-

water Neighborhood Ass’n v. Tricarico, 879 F.2d 165,

167 (5th Cir. 1989); Telecommunications Research &

Action Ctr., 750 F.2d at 75; City of Peoria, 690 F.2d at

119 (describing challenge to FCC rule in private-party

district court litigation as having been “brought in the

wrong court at the wrong time against the wrong

party”).6

This Court recently denied a petition for a writ of

certiorari presenting the same jurisdictional question

under the Hobbs Act. See Walberg v. Nack, 134 S. Ct.

1539 (2014). The same result is warranted here.

c. Finally, this case is an unsuitable vehicle for the

Court’s consideration of the jurisdictional question

6 Case law involving other agencies covered by the Hobbs Act,

28 U.S.C. 2342, similarly holds that collateral review of agency

orders is barred. See, e.g., Daniels v. Union Pac. R. Co., 530 F.3d

936, 940-941 (D.C. Cir. 2008) (Federal Railroad Administration);

United States v. Interlink Sys., Inc., 984 F.2d 79, 82-83 (2d Cir.

1993) (Federal Maritime Commission).

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13

because reversal of the Sixth Circuit’s jurisdictional

holding would not affect the outcome of the suit. In

the court of appeals’ first decision in this case, the

court determined (consistent with the position of peti-

tioner here) that it had jurisdiction to consider the

validity of the FCC’s rules. See Pet. App. 58a-70a.

The court held, however, that the rules were valid, see

id. at 57a-58a, and it therefore ruled against petitioner

on the merits. Petitioner thus could not prevail in this

case even if the Court reversed the court of appeals’

subsequent determination that the district court

lacked jurisdiction to consider petitioner’s collateral

challenge to the FCC regulations.

3. Petitioner argues at length (Pet. 25-32) that the

FCC rules he challenges are not entitled to deference

on judicial review. Because the court of appeals cor-

rectly held that it lacked jurisdiction to review those

rules, Pet. App. 23a-33a, the question of the proper

level of deference attendant to such review is not

presented here. In any event, the court of appeals

correctly determined that the FCC’s use and explica-

tion of its TCPA exemption authority is entitled to

deference. Id. at 18a-19a.

Petitioner also contends that the FCC rules he

challenges are “arbitrary and capricious, and consti-

tuted an abuse of discretion.” Pet. 33 (capitalization

altered); see Pet. 33-41. Because the court of appeals

correctly held that it lacked jurisdiction to consider

the validity of the rules, see Pet. App. 23a-33a, the

question whether the rules are valid is not properly

presented here. In any event, the court of appeals

in its earlier decision correctly rejected petition-

er’s challenge. See id. at 57a-58a. Even if the Hobbs

Act’s jurisdictional bar were inapplicable here, the

image20-00.jpg612x792

14

court’s application of the well-settled arbitrary-and-

capricious standard to the FCC rules would not war-

rant this Court’s review.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

DONALD B. VERRILLI, JR.

JONATHAN B. SALLET

Solicitor General

General Counsel

DAVID M. GOSSETT

Acting Deputy General

Counsel

JACOB M. LEWIS

Associate General Counsel

C. GREY PASH, JR.

Counsel

Federal Communications

Commission

JUNE 2014

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