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FCC Brief as Amicus Curiae - Gulf Coast v. Mark Mais (11th Cir.)

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Released: December 23, 2013
Case: 13-14008 Date Filed: 12/20/2013 Page: 4 of 31

Case No. 13-14008


___________________________________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

___________________________________________

GULF COAST COLLECTION BUREAU, INC.,







Appellant-Defendant,







v.

MARK S. MAIS,







Appellee-Plaintiff

___________________________________________

Interlocutory Appeal from the United States District Court,
Southern District of Florida, Miami Division,
Case No. 11-61936-Civ-Scola
____________________________________________

BRIEF OF THE FEDERAL COMMUNICATIONS COMMISSION

AS AMICUS CURIAE IN SUPPORT OF

APPELLANT-DEFENDANT ON JURISDICTION

____________________________________________

JONATHAN B. SALLET
ACTING GENERAL COUNSEL

JACOB M. LEWIS
ASSOCIATE GENERAL COUNSEL

PAMELA L. SMITH
COUNSEL
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
(202) 418-1740

December 20, 2013

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CERTIFICATE OF INTERESTED PERSONS AND

CORPORATE DISCLOSURE STATEMENT



Pursuant to Eleventh Circuit Rule 26.1-1, the Federal Communications
Commission states that it is an independent agency of the U.S. government.
In addition to the Federal Communications Commission and its attorneys,
Jonathan B. Sallet, Jacob M. Lewis, and Pamela L. Smith, the trial judges,
attorneys, persons, associations of persons, firms, partnerships, or
corporations that have an interest in the outcome of this appeal are listed in
the Appellant’s Initial Brief, as supplemented by the Brief for Plaintiff-
Appellee Mark S. Mais, and the Brief of ACA International As Amicus
Curiae in Support of Appellant.





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TABLE OF CONTENTS


Table Of Authorities ......................................................................................... ii
Statement Of Interest ......................................................................................... 1
Statement Of The Issue ..................................................................................... 2
Statutory And Regulatory Background ............................................................. 2
Factual And Procedural Background ................................................................ 8
Summary Of Argument ...................................................................................10
Argument .........................................................................................................11
A. The District Court’s Decision Conflicts with the
Statutory Scheme and with the Decisions of Other Courts
that Have Considered the Hobbs Act in the Context of
TCPA Cases. .......................................................................................11

B. The District Court’s Decision Has Serious Adverse
Consequences for Judicial Review of FCC Orders. ............................16
Conclusion .......................................................................................................19
i

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TABLE OF AUTHORITIES

CASES


CE Designs, Ltd. v. Prism Bus. Media, Inc., 606
F.3d 443 (7th Cir. 2010), cert. denied, 131 S. Ct.
933 (2011) ...................................................................................... 13, 14, 16
Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 104 S.Ct. 2778
(1984) ............................................................................................................ 9
City of Peoria v. Gen. Elec. Cablevision Corp., 690
F.2d 116 (7th Cir. 1982) ....................................................................... 14, 16
Columbia Broad. Sys., Inc. v. United States, 316
U.S. 407, 62 S. Ct. 1194 (1942) ..................................................................12
Dayton Power & Light Co. v. EPA, 520 F.2d 703
(6th Cir. 1975) .............................................................................................17
FCC v. ITT World Communications, Inc., 466 U.S.
463, 104 S. Ct. 1936 (1984) ................................................................. 12, 16
Leyse v. Clear Channel Broad., Inc., 2013 WL
5926700 (6th Cir. Nov. 5, 2013) .................................................................12
Mims v. Arrow Fin. Servs., 132 S. Ct. 740 (2012) ............................................ 3
Nack v. Walburg, 715 F.3d 680 (8th Cir. 2013) ........................... 13, 14, 16, 18
Self v. BellSouth Mobility, Inc., 700 F.3d 453 (11th
Cir. 2012) .................................................................................. 10, 12, 13, 16
U.S. v. Any and All Radio Station Transmission
Equip., 207 F.3d 458 (8th Cir. 2000) ............................................. 13, 15, 16

STATUTES


28 U.S.C. § 2112(a) .........................................................................................17
28 U.S.C. § 2341, et seq. .................................................................................11
28 U.S.C. § 2342(1)................................................................................. passim
28 U.S.C. § 2344 .........................................................................................8, 16
47 U.S.C. § 227 ................................................................................................. 1
47 U.S.C. § 227(b)(1)(A)(iii) ......................................................................3, 10
47 U.S.C. § 227(b)(3) ........................................................................................ 3
ii

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47 U.S.C. § 227(g)............................................................................................. 3
47 U.S.C. § 402 ...........................................................................................1, 10
47 U.S.C. § 402(a) .................................................................................. 7, 8, 11
47 U.S.C. § 402(b)............................................................................................. 7
47 U.S.C. § 503 ................................................................................................. 3
47 U.S.C. §§ 151 et seq. .................................................................................... 1
Pub. L. No. 102-243, 105 Stat. 2394 (1991) ..................................................... 2

OTHER AUTHORITIES


H. Rep. No. 102-317 (1991) .............................................................................. 5

REGULATIONS


47 C.F.R. § 1.401 ............................................................................................16
47 C.F.R. § 64.1200(a)(2) .............................................................................6, 7
47 C.F.R. § 64.1200(a)(3)(v)............................................................................. 7
47 C.F.R. § 64.1201(f)(12) ................................................................................ 6

ADMINISTRATIVE DECISIONS


Rules and Regulations Implementing the Telephone
Consumer Protection Act of 1991, 27 FCC Rcd
1830 (2012) ...............................................................................................6, 7
Rules and Regulations Implementing the Telephone
Consumer Protection Act of 1991, Report and
Order, 7 FCC Rcd 8752 (1992) ..................................................................... 4
Rules and Regulations Implementing the Telephone
Consumer Protection Act of 1991; Request of
ACA International for Clarification and
Declaratory Ruling,
Declaratory Ruling, 23 FCC
Rcd 559 (2008) ..........................................................................................5, 6


* Cases and other authorities principally relied upon are marked with
asterisks.




iii

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STATEMENT OF INTEREST


The Federal Communications Commission (“FCC”) has primary
responsibility for implementing and enforcing the Communications Act of
1934, as amended, 47 U.S.C. §§ 151 et seq. (“Communications Act”),
including the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227
(“TCPA”). In particular, the FCC has an interest in ensuring that section 402
of the Communications Act, 47 U.S.C. § 402, which vests judicial review of
Commission orders exclusively in the federal courts of appeals, is correctly
interpreted. The FCC respectfully files this brief as amicus curiae in support
of appellant-defendant.

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STATEMENT OF THE ISSUE


The United States District Court for the Southern District of Florida
1
certified the following question (and three more ) to the Court: Whether a
district court has jurisdiction under the Hobbs Act to review an FCC order in
a TCPA case when plaintiff does not challenge the validity of the order.
Mais, at *24.
Answer: As explained below, the FCC believes that the answer to the
district court’s question is no.

STATUTORY AND REGULATORY BACKGROUND

1. The TCPA. In December 1991, Congress adopted the Telephone
Consumer Protection Act (“TCPA”) by adding a new section – 47 U.S.C. §
227 – to the Communications Act of 1934. See Pub. L. No. 102-243, 105
Stat. 2394 (1991).

1 The FCC does not address the following three questions the district court
also certified to the Court: “2) If the district court has such jurisdiction,
whether the FCC’s pronouncements on the issues of ‘prior express consent’
and vicarious liability are entitled to deference under Chevron; 3) If the
district court lacks such jurisdiction, whether the FCC’s opinion on ‘prior
express consent’ is limited to the consumer credit transaction arena such that
it does not apply to the medical care setting; and 4) Whether a medical
provider’s consent to use and disclose patient information, including phone
numbers, under HIPAA equates to ‘prior express consent’ for affiliates and
agents of that provider to call the patient on his cell phone for debt collection
purposes using an automated telephone dialing system.” Mais v. Gulf Coast
Collection Bureau
, No. 11-61936-Civ, 2013 WL 1899616, at *25 (S.D. Fla.
May 8, 2013 (“Mais”).
2

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Among other things, the TCPA regulates the use of automatic
2
telephone dialing systems and the use of prerecorded or artificial voice
messages. As relevant here, the TCPA provides that it is “unlawful for any
person within the United States–(A) to make any call (other than a call made
for emergency purposes or made with the prior express consent of the called
party) using any automatic telephone dialing system or an artificial or
prerecorded voice– . . . (iii) to any telephone number assigned to a . . . cellular
3
telephone service, . . . .” 47 U.S.C. § 227(b)(1)(A)(iii).
In addition to enforcement in lawsuits by the FCC, see 47 U.S.C. §
503, and state attorneys general, see 47 U.S.C. § 227(g), the TCPA creates a
private right of action to enforce its terms. See 47 U.S.C. § 227(b)(3)
(providing for damages and/or injunctive relief). Federal and state courts
have concurrent jurisdiction over private-party lawsuits arising under the
TCPA. Mims v. Arrow Fin. Servs., 132 S. Ct. 740 (2012).

2 The Communications Act defines an automatic telephone dialing system
as “equipment which has the capacity–(A) to store or produce telephone
numbers to be called, using a random or sequential number generator; and (B)
to dial such numbers.” 47 U.S.C. § 227(a)(1).
3 The FCC’s implementing rule similarly provides that “[n]o person or
entity may: (1) initiate any telephone call (other than a call made for
emergency purposes or made with the prior express consent of the called
party) using an automatic telephone dialing system or an artificial or
prerecorded voice . . . (iii) [t]o any telephone number assigned to a . . .
cellular telephone service, . . . .” 47 C.F.R. § 64.1200(a)(1)(iii).
3

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2. “Prior Express Consent” Within the Meaning of Section
227(b)(1)(A)(iii) of the TCPA. The FCC first interpreted the TCPA’s “prior
express consent” requirement in its order implementing the TCPA. See Rules
and Regulations Implementing the Telephone Consumer Protection Act of
1991, Report and Order, 7 FCC Rcd 8752, 8768-69 (¶¶ 29-31) (1992) (“1992
FCC Order”). In doing so, the agency agreed with the view expressed by
many commenters “that any telephone subscriber that provides his or her
telephone number to a business does so with the expectation that the party to
whom the number was given will return the call,” and that “any telephone
subscriber who releases his or her telephone number has, in effect, given prior
express consent to be called by the entity to which the number was released.”
7 FCC Rcd at 8769 (¶ 30). On the basis of those comments, the FCC
concluded that “persons who knowingly release their phone numbers have in
effect given their invitation or permission to be called at the number which
they have given, absent instructions to the contrary,” and thus, “[callers] will
not violate our rules by calling a number which was provided as one at which
the called party wishes to be reached.” Id. at ¶ 31. In reaching this
construction of the statutory language, the FCC derived support from the
House Report preceding the TCPA’s enactment, which noted that “the called
party has in essence requested the contact by providing the caller with their
4

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telephone number for use in normal business communications.” Id. at n.57
(citing H. Rep. No. 102-317, at 13) (1991)).
In 2008, the FCC addressed a petition filed by ACA International, a
trade organization of credit and collection companies, which asked the
agency to “clarify” that the TCPA’s prohibition against autodialed or
prerecorded calls to wireless telephone numbers does not apply to “creditors
and collectors when calling wireless telephone numbers to recover payments
for goods and services received by consumers.” See Rules and Regulations
Implementing the Telephone Consumer Protection Act of 1991; Request of
ACA International for Clarification and Declaratory Ruling, Declaratory
Ruling, 23 FCC Rcd 559, 563 (¶ 8) (2008) (“2008 FCC Ruling”).
The FCC concluded that “the provision of a cell phone number to a
creditor, e.g., as part of a credit application, reasonably evidences prior
express consent by the cell phone subscriber to be contacted at that number
regarding the debt.” 23 FCC Rcd at 564 (¶ 9). Because the agency found
that “autodialed and prerecorded message calls to wireless numbers provided
by the called party in connection with an existing debt are made with the
‘prior express consent’ of the called party,” the FCC “clarif[ied] that such
calls” by creditors “are permissible.” Ibid. Accord id. at 559 (¶ 1). The
FCC also “emphasize[d] that prior express consent is deemed to be granted
5

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only if the wireless number was provided by the consumer to the creditor, and
that such number was provided during the transaction that resulted in the debt
owed.” 23 FCC Rcd at 564-65 (¶ 10). The FCC determined that “[c]alls
placed by a third party collector on behalf of that creditor are treated as if the
creditor itself placed the call.” Ibid.
In 2012, the FCC revised its TCPA rules governing telemarketing to
require “prior express written consent for all telephone calls using an
automatic telephone dialing system or a prerecorded voice to deliver a
telemarketing message to wireless numbers and residential lines.” Rules and
Regulations Implementing the Telephone Consumer Protection Act of 1991,
4
27 FCC Rcd 1830, 1838 (¶20) (2012) (“2012 FCC Order”). See 47 C.F.R. §
64.1200(a)(2). While the revised rules “require prior written consent for
autodialed or prerecorded telemarketing calls,” the FCC “maintained the
existing consent rules for non-telemarketing informational calls.” 2012 FCC
Order, 27 FCC Rcd at1841 (¶28) (emphasis in original). Additionally, the
FCC exempted from the TCPA’s prior express consent requirement “all

4 “Telemarketing” is defined by FCC rules as “the initiation of a telephone
call or message for the purpose of encouraging the purchase or rental of, or
investment in, property, good, or services, which is transmitted to any
person.” 47 C.F.R. § 64.1201(f)(12). As the Commission determined in
2008, “calls solely for the purpose of debt collection . . . do not constitute
telemarketing.” 2008 Ruling, 23 FCC Rcd at 565 (¶11).
6

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prerecorded health care-related calls to residential lines that are subject to
HIPAA [the Health Insurance Portability and Accountability Act of 1996],”
“[i]n view of the privacy protections afforded under [that statute].” 2012
FCC Order, 27 FCC Rcd at 1852 (¶57). See 47 C.F.R. § 64.1200(a)(3)(v).
See also 47 C.F.R. § 64.1200(a)(2) (exempting from prior express written
consent requirement autodialed or prerecorded telemarketing calls to
telephone numbers assigned to a cellular telephone service “that deliver[] a
‘health care’ message made by, or on behalf of, a ‘covered entity’ or its
‘business associate,’” as defined by HIPAA rules).
3. Statutory Provisions Governing Judicial Review of FCC Orders.
The Communications Act establishes the exclusive mechanism for
challenging or determining the validity of orders issued by the FCC. Section
402(a) of the Communications Act specifies that “[a]ny proceeding to enjoin,
set aside, annul, or suspend any order of the Commission . . . shall be brought
as provided by and in the manner prescribed in chapter 158 of title 28,
5
[United States Code].” 47 U.S.C. § 402(a). The cross-referenced chapter of
the U.S. Code, which is commonly known as the Hobbs Act, provides in

5 Judicial review of FCC licensing and other specified decisions is governed
by 47 U.S.C. § 402(b), which vests exclusive jurisdiction even more narrowly
in the United States Court of Appeals for the District of Columbia Circuit.
Because the agency orders at issue do not fall within those listed in section
402(b), that provision is not applicable.
7

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relevant part that “[t]he court of appeals . . . has exclusive jurisdiction to
enjoin, set aside, suspend (in whole or in part), or to determine the validity of
. . . all final orders of the Federal Communications Commission made
reviewable by [47 U.S.C. § 402(a)].” 28 U.S.C. § 2342(1). The Hobbs Act
also specifies that “[a]ny party aggrieved 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.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Underlying Lawsuit. Appellee-plaintiff Mark Mais filed suit in
federal district court against appellant-defendant Gulf Coast Collection
Bureau (“GCCB”), a debt collector, on a claim that GCCB violated the TCPA
by using a predictive dialer to make between 15 and 30 calls to his cellular
telephone number, and left four messages, in an effort to collect a debt Mais
had incurred for medical services. Mais, at *2. Mais’s wife had provided
the cellular telephone number on his behalf at the time the medical services
were rendered. Id., *1. Expressly relying on the 2008 FCC Ruling, GCCB
moved the district court for summary judgment on the ground that such calls
had been made with Mais’s (via his spouse) prior express consent and thus
GCCB could not be held liable for violating the TCPA. Id., at *2.
8

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2. The District Court’s Decision. The district court denied summary
judgment. In doing so, the court rejected GCCB’s argument “that it was
bound by the 2008 FCC Ruling and without the authority or jurisdiction to
review it for consistency with the statute.” Id., at *5. The court
acknowledged that under the Hobbs Act, “the federal courts of appeals have
exclusive jurisdiction to determine the validity of FCC orders ‘made
reviewable by section 402(a).’” Id., at *6. The court nevertheless found that
the Hobbs Act did not divest it of jurisdiction because “the Plaintiff does not
seek to collaterally attack an FCC order in any respect.” Id., *8. Instead, the
court explained, “this action’s central aim is not to invalidate any such order,”
but instead “the purpose of the lawsuit is to obtain damages for violations of
the TCPA.” Ibid.
“Having found no deprivation of jurisdiction,” the district court next
considered whether the 2008 FCC Ruling was entitled to deference under the
two-part framework announced in Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778 (1984) (“Chevron”). Id.,
at *8. It concluded that the “FCC’s construction [of “express consent”] is
inconsistent with the statute’s plain language,” and therefore “is not entitled
to deference.” Id., at * 9. The district court thus “reject[ed]” the affirmative
defense that the calls made to Mais’s cellular telephone number were
9

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permissible under the TCPA, and decided that “[GCCB’s] argument, like the
2008 FCC Ruling, is inconsistent with the statute’s plain language.” Id. at
6
*9.
On GCCB’s motion, the district court certified its judgment for
interlocutory review.

SUMMARY OF ARGUMENT

The district court lacked jurisdiction to refuse to follow the FCC’s
long-standing construction of the “prior express consent” requirement of
section 227(b)(1)(A)(iii) of the TCPA, 47 U.S.C. § 227(b)(1)(A)(iii). Instead,
exclusive jurisdiction to determine the validity of final orders of the FCC is
vested exclusively in the courts of appeals under the Communications Act
and the Hobbs Act. 47 U.S.C. § 402; 28 U.S.C. § 2342(1); Self v. BellSouth
Mobility, Inc., 700 F.3d 453, 461-64 (11th Cir. 2012).

6 “Alternatively,” the court found that: 1) the 2008 FCC Ruling “does not
apply to the medical care setting,” Mais, at *10; and 2) “[e]ven assuming that
2008 FCC Ruling does apply,” GCCB had failed to show that Mais
“consented to be called by the relevant creditor,” id. at *11. The FCC does
not address the district court’s alternative bases for denying summary
judgment.
10

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ARGUMENT

A. The District Court’s Decision Conflicts with the

Statutory Scheme and with the Decisions of Other
Courts that Have Considered the Hobbs Act in the
Context of TCPA Cases.


Section 402(a) of the Communications Act, 47 U.S.C. § 402(a),
specifies that (with certain exceptions 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 action. 28 U.S.C. § 2342(l) (emphases added). In
rejecting GCCB’s affirmative defense that the autodialed calls it made to
Mais’s cellular telephone number were permissible under the TCPA, the
district court bypassed the clearly expressed – and exclusive – mechanism for
judicial review of FCC orders by also deciding that “the 2008 FCC Ruling, is
inconsistent with the statute’s plain language.” Mais, at *9. The district
court’s decision is irreconcilable with other courts that have considered the
Hobbs Act-jurisdictional question that has been certified to the Court, and
thus threatens to destabilize settled procedures for judicial review of FCC
orders.
1. The well-established mechanism for obtaining review of FCC orders
is by means of a petition for review of the relevant FCC decision filed in the
11

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appropriate court of appeals in an action in which the FCC is a party. As we
have noted, pursuant to section 402(a) of the Communications Act,
“proceeding[s] to enjoin, set aside, annul, or suspend any order of the
Commission” are (except in a limited class of cases not relevant here)
required to be brought under the Hobbs Act, which provides that “[t]he court
of appeals . . . has exclusive jurisdiction to enjoin, set aside, suspend (in
whole or in part), or to determine the validity of . . . all final orders of the
Federal Communications Commission.” 28 U.S.C. § 2342(l). It has long
been settled that FCC orders adopting rules, even those embodying
interpretive rulings, are “orders” subject to review under the Hobbs Act.
Columbia Broad. Sys., Inc. v. United States, 316 U.S. 407, 417, 62 S. Ct.
1194, 1200 (1942); Leyse v. Clear Channel Broad., Inc., 2013 WL 5926700,
at *10 (6th Cir. Nov. 5, 2013).
“Because the courts of appeals have exclusive jurisdiction over claims
to enjoin, suspend, or invalidate a final order of the FCC, the district courts
do not have it.” Self, 700 F.3d at 461 . See, e.g., FCC v. ITT World
Communications, Inc., 466 U.S. 463, 468, 104 S. Ct. 1936, 1939 (1984)
(“Exclusive jurisdiction for review of final FCC orders . . . lies in the Court of
Appeals.”). Accord, e.g., Leyse, 2013 WL 5926700, at *3 ; Nack v. Walburg,
715 F.3d 680, 685 (8th Cir. 2013); CE Designs, Ltd. v. Prism Bus. Media,
12

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7
Inc., 606 F.3d 443, 450 (7th Cir. 2010), cert. denied, 131 S. Ct. 933 (2011).
“That means,” as this Court has explained, that “district courts cannot
determine the validity of FCC orders.” Self, 700 F.3d at 461.
“[T]he procedural path designed by Congress serves a number of valid
goals: It promotes judicial efficiency, vests an appellate panel rather than a
single district judge with the power of agency review, and allows ‘uniform,
nationwide interpretation of the federal statute by the centralized expert
agency created by Congress’ to enforce the TCPA.” CE Designs, 606 F.3d at
450. Accord Nack, 715 F.3d at 685-86. See also U.S. v. Any and All Radio
Station Transmission Equip., 207 F.3d 458, 463 (8th Cir. 2000) (en banc) (the
Hobbs Act “ensure[s] review based on an administrative record made before
the agency charged with implementation of the statute,” allows “uniformity
of decisionmaking because of uniform factfinding made by the agency,” and
“brings[s] to bear the agency’s expertise in engineering and other technical
questions.” ).

7 See also Qwest Corp. v. Public Utils. Comm’n of Colorado, 479 F.3d
1184, 1192 n.6 (10th Cir. 2007); In re NextWave Pers. Commc’ns, 200 F.3d
43, 54 (2d Cir. 1999; Wilson v. A.H. Belo, 87 F.3d 393 (9th Cir. 1996);
Bywater Neighborhood Ass’n v. Tricaro, 879 F.2d 165, 167 (5th Cir. 1989),
cert. denied, 494 U.S. 1004, 110 S. Ct. 1296 (1990); Telecommunications
Research and Action Center
v. FCC, 750 F.2d 70, 75 (D.C. Cir. 1984).
13

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2. In the face of the Hobbs Act’s settled limitations on its jurisdiction,
the district court nonetheless decided that it was not “depriv[ed] of
jurisdiction” to review – and to refuse to defer – the Commission’s 2008 FCC
Ruling regarding the TCPA’s prior express consent requirement. Mais, at *8,
*9. The court reasoned that because “the action seeks damages for debt
collection calls that violate the TCPA,” Mais, at *6, see id. at *8, and because
“the 2008 FCC Ruling pertains to the Defendants’ affirmative defense of
consent,” id., at *6, the lawsuit’s “central aim is not to invalidate any [FCC]
order.” Id., at *8. The district court’s reasoning is flawed on both counts.
Thus, whether a challenge to an FCC order “arises in a dispute between
private parties makes no difference – the Hobbs Act’s jurisdictional
limitations are ‘equally applicable whether [a party] wants to challenge the
rule directly . . . or indirectly, by suing someone who can be expected to set
up the rule as a defense in the suit.’” CE Designs, 606 F.3d at 448 (quoting
City of Peoria v. Gen. Elec. Cablevision Corp., 690 F.2d 116, 120 (7th Cir.
1982)). “To hold otherwise merely because the [TCPA] issue has arisen in
private litigation would permit an end-run around the administrative review
mandated by the Hobbs Act.” Nack, 715 F.3d at 686.
Likewise, that invalidity of the FCC’s ruling is raised as a defense is of
no moment. “‘[W]here the practical effect of a successful attack on the
14

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enforcement of an order involves a determination of its validity,’ such as a
defense that a private enforcement action is based upon an invalid agency
order, ‘the statutory procedure for review provided by Congress remains
applicable.” Ibid. (citation omitted). See also Any and All Radio, 207 F.3d at
463 (“A defensive attack on the FCC regulations is as much an evasion of the
exclusive jurisdiction of the Court of Appeals as is a preemptive strike.”).
Moreover, nothing in the Communications Act or the Hobbs Act
suggests that the purpose of a litigant’s suit – whether its “central aim” (Mais,
at *8) is to enforce or undercut an FCC order – is an appropriate basis for
determining jurisdiction. Regardless of the “purpose” (Mais, at *8) of a
lawsuit, if its effect (as here) is to invite the reviewing court to “determine the
validity of [a] final order[]”of the FCC, 28 U.S.C. § 2342(1), exclusive
jurisdiction lies in the appropriate court of appeals on direct review. If a
claim necessarily depends on establishing that parts of an FCC order “are
wrong as a matter of law or otherwise invalid,” then the party “may seek
review of the relevant parts . . . and attempt to establish the invalidity of them
in the court of appeals, after seeking reconsideration in the FCC, see 28
15

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U.S.C. § 2344, but [the party] may not seek collateral review of them by
8
filing claims in the district court.” Self, 700 F.3d at 462.
Finally, as this Court has explained, “[b]ecause the district court lacks
jurisdiction to review the FCC’s orders at all, it lacks jurisdiction to decide
whether the orders are invalid because they are outside the jurisdictional
authority of the agency.” Id., at 463 . “[A] court without jurisdiction to
review agency action lacks jurisdiction to decide whether the agency had
9
jurisdiction to act as it did.” Id. at 464.
In short, the validity of the 2008 FCC Ruling thus should not have been
subjected to review by the district court but should have been regarded as
binding law.

B. The District Court’s Decision Has Serious Adverse

Consequences for Judicial Review of FCC Orders.


If the district court’s decision is left to stand, the validity of FCC orders
and rules could be called into question in a host of collateral challenges in

8 A party that wishes to challenge an FCC decision after the Hobbs Act 60-
day period for direct review has expired can petition the FCC for a new
rulemaking proceeding, 47 C.F.R. § 1.401. See ITT World, 466 U.S. at 468
n.5; Nack, 715 F.3d at 685; City of Peoria, 690 F.2d at 121; Any and All
Radio
, 207 F.3d at 463. The FCC’s disposition of any such petition would
then be reviewable under the Hobbs Act in the ordinary course.
9 “[D]eeming agency action valid or ineffective is precisely the sort of
review that the Hobbs Act delegates to the courts of appeals in cases
challenging final FCC orders.” CE Designs, 606 F.3d at 448.
16

Case: 13-14008 Date Filed: 12/20/2013 Page: 25 of 31
which the FCC is not a party and as to which its lawyers have no notice. That
result raises the specter of conflicting opinions from different courts as to
whether a particular FCC order or rule is, or is not, valid.

Congress has provided, in 28 U.S.C. § 2112(a), a rule for consolidating
multiple challenges to agency orders in a single court of appeals. There
would be little point to consolidating challenges to agency orders in a single
court of appeals if the validity of the agency’s order also could be challenged
during the course of private litigation in courts across the country. As the
Sixth Circuit recognized in a different context, if the validity of an agency’s
“regulations were to be reviewed in the Court of Appeals for each circuit
there would be a substantial risk of seriously inconsistent results and an
inevitable delay in the effectuation of the important national policies
underlying the” statute the agency was implementing. Dayton Power & Light
Co. v. EPA, 520 F.2d 703, 708 (6th Cir. 1975). That is all the more true if
10
district courts, and potentially state courts, are found to have jurisdiction to

10 As noted above, private-party litigation under the TCPA may be brought
in state courts, as well as federal district courts. Pursuant to the district
court’s decision, state courts could assert jurisdiction to determine the validity
of FCC TCPA orders, because, as the district court implicitly held, the
“central aim” of such private lawsuits is not to undercut or enforce the order.
Mais, at *8.
17

Case: 13-14008 Date Filed: 12/20/2013 Page: 26 of 31
consider the validity of FCC orders and regulations in the context of private
party litigation under the TCPA.

The ruling by the district court also threatens to substantially impair the
FCC’s ability to effectively defend its own orders in court. The FCC lacks
the resources to monitor all private-party cases brought under the TCPA in
state and federal courts in order to ensure that the agency’s interests are
represented when its orders and rules are challenged in private-party actions.
(Indeed, in this case, the FCC only learned of the district court’s decision and
11
the ensuing interlocutory appeal through happenstance.) Countenancing an
end run around the limitations of the Hobbs Act by permitting collateral
attacks on FCC orders in private lawsuits “could result in a judicial
determination of a regulation’s invalidity without participation by the agency
and upon a record not developed by the agency.” Nack, 715 F.3d at 686.
* * * * *
It is a striking acknowledgment of the force of the governing precedent
and of the applicable policy arguments that appellee-plaintiff Mark Mais does

11 One non-exhaustive compilation of TCPA cases lists more than 1,650
such cases in federal and state courts. See
http://www.tcpalaw.com/free/cases.htm">http://www.tcpalaw.com/free/cases.htm (Dec. 12, 2013). In addition, during
the first half of this year alone, more than 100,000 informal TCPA complaints
were processed by the FCC. See
http://www.tr.com/online/trd/2013/td121213/index.htm">http://www.tr.com/online/trd/2013/td121213/index.htm (Dec. 12, 2013).
18

Case: 13-14008 Date Filed: 12/20/2013 Page: 27 of 31
not defend the district court’s Hobbs Act ruling on appeal. Contending that
the district court decided the issue “unnecessarily,” Br. 31, Mais strenuously
urges that this Court “should not reach” the question of the district court’s
jurisdiction to review the FCC’s 2008 Ruling. Br. 2-3, 31. Instead, he asks
this Court to “save the Hobbs Act for another day – when it is actually forced
to confront the question.” Br. 34.
But in the ruling below, the district court expressly decided that it had
jurisdiction to examine the FCC’s 2008 Ruling, and concluded it was due no
deference, Mais, at *6-*9. And in its order certifying interlocutory appeal,
the court identified the question of its jurisdiction in the face of Hobbs Act as
the first of several “controlling questions of law.” Mais, at *24. Under the
circumstances, it would be wholly inappropriate for this Court to ignore the
district court’s erroneous ruling on the Hobbs Act. On the contrary, for the
reasons we have set forth, the district court’s ruling should be disavowed.

CONCLUSION


As explained above, the district court lacked jurisdiction to review the
FCC’s interpretation of the TCPA’s prior express consent requirement for
calls made to a cellular telephone number using an automatic telephone
dialing system.



19

Case: 13-14008 Date Filed: 12/20/2013 Page: 28 of 31

Respectfully submitted,

JONATHAN B. SALLET
ACTING GENERAL COUNSEL

JACOB M. LEWIS
ASSOCIATE GENERAL COUNSEL

/s/ Pamela L. Smith

PAMELA L. SMITH
COUNSEL

FEDERAL COMMUNICATIONS
COMMISSION
WASHINGTON, D.C. 20554
(202) 418-1740


December 20, 2013

20

Case: 13-14008 Date Filed: 12/20/2013 Page: 29 of 31
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT



GULF COAST COLLECTION BUREAU, INC.,
APPELLANT-DEFENDANT,
v.
NO. 13-14008

MARK S. MAIS,
APPELLEE-PLAINTIFF.



CERTIFICATE OF COMPLIANCE

Pursuant to the requirements of Fed. R. App. P. 32(a)(7), I hereby
certify that the accompanying Brief of the Federal Communications
Commission As Amicus Curiae In Support of Appellant-Defendant on
Jurisdiction in the captioned case contains 4,476 words.

/s/Pamela L. Smith
Pamela L. Smith

Counsel
Federal Communications Commission
Washington, D.C. 20554
(202) 418-1740 (Telephone)
(202) 418-2819 (Fax)
December 20, 2013



Case: 13-14008 Date Filed: 12/20/2013 Page: 30 of 31
13-14008

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

MARK S. MAIS, PLAINTIFF-APPELLEE

v.

GULF COAST COLLECTION BUREAU, INC., DEFENDANT-APPELLANT


CERTIFICATE OF SERVICE


I, Pamela L. Smith, hereby certify that on December 20, 2013, I
electronically filed the foregoing Brief of the Federal Communications
Commission As Amicus Curiae In Support Of Appellant-Defendant On
Jurisdiction with the Clerk of the Court for the United States Court of
Appeals for the Eleventh Circuit by using the CM/ECF system. Participants
in the case who are registered CM/ECF users will be served by the CM/ECF
system.


Deepak Gupta
O. Randolph Bragg
Gupta Beck, PLLC
Horwitz Horwitz & Associates, Ltd.
1625 Massachusetts Ave., N.W.
U.S. Department of Justice
Suite 500
25 E. Washington Street
Washington, D.C. 20036
Suite 900
Counsel for: Mark S. Mais
Chicago, IL 60602
Counsel for: Mark S. Mais


Donald A. Yarbrough, Esq.
Ernest H. Kohlmyer, III
2000 E. Oakland Park Blvd
Urban Their Federer & Chinner, PA
Suite 105
200 S. Orange Ave
P.O. Box 11842
Suite 2025
Fort Lauderdale, FL 33339
Orlando, FL 32801
Counsel for: Mark S. Mais
Counsel for: Gulf Coast Collection

Bureau, Inc.





Case: 13-14008 Date Filed: 12/20/2013 Page: 31 of 31
13-14008



Brian Melendez
Dykema Gossett, PLLC
90 S. 7th Street
Suite 4000
Minneapolis, MN 55402
Counsel for: ACA International







/s/ Pamela L. Smith

Document Outline

  • ADPA9FB.tmp
    • Table Of Authorities
    • Statement Of Interest
    • Statement Of The Issue
    • Statutory And Regulatory Background
    • Factual And Procedural Background
    • Summary Of Argument
    • Argument
      • A. The District Courts Decision Conflicts with the Statutory Scheme and with the Decisions of Other Courts that Have Considered the Hobbs Act in the Context of TCPA Cases.
      • B. The District Courts Decision Has Serious Adverse Consequences for Judicial Review of FCC Orders.
    • Conclusion

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