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Michael Nack v. Douglas Walburg, No. 11-1460 (8th Cir.)

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Released: August 28, 2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT



MICHAEL R. NACK, individually and on
)

behalf of all others similarly-situated
)

Plaintiff-Appellant
)




v.

) No. 11-1460







)
DOUGLAS PAUL WALBURG
)
Defendant-Appellee
)


MOTION OF THE FEDERAL COMMUNICATIONS COMMISSION

FOR LEAVE TO FILE SUPPLEMENTAL BRIEF

The Federal Communications Commission (“FCC”) respectfully
requests leave to file the attached supplemental brief in response to the brief
filed by Anda, Inc. in this case.
At the Court’s invitation, the FCC filed a brief addressing the meaning
and scope of 47 C.F.R. § 64.1200(a)(3)(iv) and its application to this case.
See Order of the Ct. (Jan. 11, 2011). Because this case “does not involve
judicial review of FCC action pursuant to the Hobbs Act,” the FCC
explained that the Court ‘is without jurisdiction to entertain a challenge to
[the] FCC regulation[].’” FCC Brief, quoting Any and All Radio Station
Transmission Equip., 207 F.3d 458, 463 (8th Cir. 2000).
Appellee Douglas Walburg, in a responsive brief, told the Court that
section 64.1200(a)(3)(iv) was “perfectly valid” and agreed with the FCC that


2
“the validity of the FCC’s regulation is not at issue here.” Walburg
Response Brief at 12, 15. Appellant Michael Nack agrees that section
64.1200(a)(3)(iv) is lawful. Nack Reply Brief at 3-4.

On July 23, 2012, this Court accepted an amicus brief filed by Anda,
an amicus curiae ostensibly supporting Walburg, that (1) challenges the
lawfulness of section 64.1200(a)(3)(iv) and (2) contends that sections 703
and 704 of the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 703,
704, create an exception to the Hobbs Act that permit the Court to entertain
that challenge on review in this private civil action. See Order of the Ct.
(July 23, 2012).
Anda acknowledges that its jurisdictional claim “has not been raised
or discussed by the parties or the FCC.” Anda, Inc’s Motion for Leave to
Appear and File Amicus Curiae Brief in Support of Appellee at 2. The FCC
respectfully asks the Court for the opportunity to address that issue. Anda’s
claim, if accepted by the Court, would transform the “exclusive jurisdiction”
(47 U.S.C. § 2342(1)) that Congress gave to the courts of appeals to review
final action in FCC rulemaking orders under the specific Hobbs Act
procedures into a broad grant of “concurrent jurisdiction” to both district and
appellate courts in a wide range of cases. That radical transformation of
settled law would permit litigants to raise a collateral challenge to an FCC


3
rule in cases where the FCC has no opportunity to defend its rule because it
is not a party and may be unaware that the lawfulness of its rule is under
attack. See Any and All Radio Station Transmission Equip., 207 F.3d at 463.
Because Anda’s jurisdictional argument has not been briefed by the parties
to this case and has significant ramifications for the FCC, we respectfully
request the opportunity to respond to this argument by filing the attached 15-
page supplemental brief.
Respectfully
submitted,





Sean Lev
General
Counsel







Peter
Karanjia
Deputy
General
Counsel






Jacob M. Lewis
Associate
General
Counsel

/s/
Laurel
R.
Bergold

Laurel
R.
Bergold,
Counsel




Federal Communications Commission


Washington D.C. 20554
(202)
418-1747

August 21, 2012























ATTACHMENT


SUPPLEMENTAL AMICUS BRIEF
IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

NO. 11-1460

MICHAEL R. NACK, INDIVIDUALLY AND ON BEHALF OF
ALL OTHERS SIMILARLY SITUATED,
PLANTIFF-APPELLANT,
V.
DOUGLAS PAUL WALBURG,
DEFENDANT-APPELLEE.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF MISSOURI, EASTERN DIVISION
CASE NO. 4:10-CV-00478-AGF THE HONORABLE AUDREY
G. FLEISSIG, UNITED STATES DISTRICT COURT JUDGE

SUPPLEMENTAL AMICUS BRIEF FOR THE FEDERAL COMMUNICATION
COMMISSION URGING REVERSAL

SEAN LEV
GENERAL COUNSEL

PETER KARANJIA
DEPUTY GENERAL COUNSEL

JACOB M. LEWIS
ASSOCIATE GENERAL COUNSEL

LAUREL R. BERGOLD
COUNSEL

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


TABLE OF CONTENTS


TABLE OF AUTHORITIES ........................................................................... ii
STATEMENT OF INTEREST .........................................................................1
INTRODUCTION AND SUMMARY ARGUMENT .....................................2
ARGUMENT ....................................................................................................4
I.
BECAUSE THE PARTIES AGREE THAT SECTION
64.1200(a)(3)(iv) IS A VALID FCC REGULATION,
NON-PARTY ANDA’S ARGUMENTS ARE NOT
PROPERLY BEFORE THE COURT. ......................................................4

II. THE COURT LACKS JURISDICTION TO RULE ON
THE SUBSTANTIVE VALIDITY OF SECTION
64.1200(a)(3)(iv)........................................................................................7

A. The Hobbs Act Precludes A Collateral Challenge To The
FCC Rule In A Private Civil Action. ....................................................7
B. Sections 703 and 704 Of The APA Do Not Permit The
Court To Entertain Collateral Challenges To The
Substantive Validity Of FCC Rules. .....................................................9

C. The Hobbs Act Enables Litigants To Challenge The
Substantive Validity Of FCC Rules And Provides
Litigants The Opportunity To Obtain Full Relief. ..............................11

CONCLUSION ...............................................................................................15
i

TABLE OF AUTHORITIES

CASES


Bangura v. Hanson, 434 F.3d 487 (6th Cir. 2006) .........................................10
Bowen v. Massachusetts, 487 U.S. 879 (1988) .................................................9
FCC v. ITT World Commc’ns, Inc., 466 U.S. 463
(1984) ................................................................................................. 4, 9, 10
ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270
(1987) ..........................................................................................................12
K.D. v. Cnty. of Crow Wing, 434 F.3d 1051 (8th
Cir. 2006).......................................................................................................5
Mitchell v. United States, 930 F.2d 893 (Fed. Cir.
1991)............................................................................................................13
Ritchie Capital Mgmt., L.L.C. v. Jeffries, 653 F.3d
755 (8th Cir. 2011) ........................................................................................5
Sable Commc’ns of Calif. v. FCC, 827 F.2d 640
(9th Cir. 1987) ...................................................................................... 13, 14
Solis v. Summit Contractors, Inc., 558 F.3d 815 (8th
Cir. 2009).......................................................................................................6
Telecomm. Res. & Action Ctr. v. FCC, 750 F.2d 70
(D.C. Cir. 1984).............................................................................................8
Town of Sanford v. United States, 140 F.3d 20 (1st
Cir. 1998).....................................................................................................13
Turner v. United States, 449 F.3d 536 (3d Cir.
2006)............................................................................................................13
United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56
(1981) ............................................................................................................6
United States v. Any and All Radio Station
Transmission Equip., 207 F.3d 458 (8th Cir.
2000)................................................................................................... 8, 9, 10
United States v. Ne. Pharm. & Chem. Co., Inc., 810
F.2d 726 (8th Cir. 1986)............................................................................3, 6
United States v. Neset, 235 F.3d 415 (8th Cir. 2000) .......................................8
ii

Vonage Holdings Corp. v. Minnesota Pub. Serv.
Comm’n, 394 F.3d 568 (8th Cir. 2004) .....................................................8, 9
Waldner v. Carr, 618 F.3d 838 (8th Cir. 2010) ................................................5
Whitney Nat'l Bank in Jefferson Parish v. Bank of
New Orleans & Trust Co., 379 U.S. 411 (1965).........................................10

STATUTES AND REGULATIONS


5 U.S.C. § 553(e).............................................................................................12
5 U.S.C. § 703 ...............................................................................................2, 5
5 U.S.C. § 704 .................................................................................... 2, 4, 5, 11
28 U.S.C. § 2341, et seq. ...............................................................................2, 7
28 U.S.C. § 2342 .............................................................................................11
28 U.S.C. § 2342(1) ............................................................................... 3, 7, 10
28 U.S.C. § 2344 ...........................................................................................7, 8
47 U.S.C. § 154(i) .............................................................................................5
47 U.S.C. § 303(r) .............................................................................................5
47 U.S.C. § 402(a).............................................................................................7
47 U.S.C. § 402(b) .............................................................................................7
47 U.S.C. § 405 ...............................................................................................12
47 C.F.R. § 1.401 ............................................................................................12
47 C.F.R. § 64.1200(a)(3)(iv) .......................................................................1, 2


iii

IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

NO. 11-1460

MICHAEL R. NACK, INDIVIDUALLY AND ON BEHALF OF
ALL OTHERS SIMILARLY SITUATED,
PLANTIFF-APPELLANT,
V.
DOUGLAS PAUL WALBURG,
DEFENDANT-APPELLEE.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MISSOURI, EASTERN
DIVISION CASE NO. 4:10-CV-00478-AGF THE
HONORABLE AUDREY G. FLEISSIG, UNITED STATES
DISTRICT COURT JUDGE

SUPPLEMENTAL AMICUS BRIEF

STATEMENT OF INTEREST

The Federal Communications Commission (“FCC”) administers the
Telephone Consumer Protection Act of 1991 (“TCPA”), which imposes
restrictions on the transmission of advertisements by facsimile machines.
The FCC rule at issue in this case, codified at 47 C.F.R. § 64.1200(a)(3)(iv),

requires the inclusion of an “opt-out” notice on facsimile advertisements
transmitted with the recipient’s consent. Judicial review of the FCC’s rules,
such as section 64.1200(a)(3)(iv), is governed by the Administrative Orders
Review Act (commonly known as the Hobbs Act), 28 U.S.C. § 2341, et seq.
The FCC has an interest in ensuring that the TCPA, section 64.1200(a)(3)(iv)
of the agency’s rules, and the Hobbs Act are interpreted correctly.

INTRODUCTION AND SUMMARY ARGUMENT

On July 23, 2012, this Court accepted an amicus brief filed by Anda,
Inc. presenting a jurisdictional argument that Anda itself acknowledges “has
1
not been raised or discussed by the parties or the FCC.” Notwithstanding
the review mechanism established in the Hobbs Act, Anda claims that
sections 703 and 704 of the Administrative Procedure Act (“APA”), 5 U.S.C.
§§ 703, 704, give this Court jurisdiction to consider a challenge to section
64.1200(a)(3)(iv) of the FCC’s rules, 47 C.F.R. § 64.1200(a)(3)(iv), on
review of a private action initiated in a district court. That is so, Anda
contends, even where the FCC is not a party to – and may not even be aware
of – the litigation that challenges the validity of the agency’s rules. Anda
Brief at 8-11. Anda offers this jurisdictional theory in support of its request

1 Anda, Inc’s Motion for Leave to Appear and File Amicus Curiae Brief in
Support of Appellee at 2.
2

for a ruling from this Court the FCC lacked statutory authority to enact
section 64.1200(a)(3)(iv) (id. at 16) – a ruling that, again, is sought by neither
of the parties to this case.

As we explain below, Anda’s arguments are not properly before the
Court and, in any event, are unfounded. As an initial matter, consistent with
its practice, this Court should not reach arguments that neither of the parties
to this case has advanced. Appellee Douglas Walburg told the Court that
section 64.1200(a)(3)(iv) is “perfectly valid” and that “the FCC had authority
to adopt the regulation.” Walburg Response Brief at 12, 15. Appellant
Michael Nack likewise agrees that the FCC acted lawfully in enacting section
64.1200(a)(3)(iv). Nack Reply Brief at 3-4. Because an amicus curiae may
not raise a challenge to the FCC’s rulemaking authority that was not raised by
the parties themselves, the Court should not address either the validity of the
rule or its jurisdiction to consider the validity of the rule. United States v. Ne.
Pharm. & Chem. Co., Inc., 810 F.2d 726, 732 n.3 (8th Cir. 1986).
In any event, Anda’s jurisdictional argument is wrong for two reasons.
First, Congress gave the courts of appeals in Hobbs Act proceedings
exclusive jurisdiction to . . . determine the validity of” final action in FCC
rulemaking orders. 28 U.S.C. § 2342(1) (emphasis added). By making that
grant of jurisdiction “exclusive,” Congress affirmatively denied to all other
3

courts jurisdiction to make such determinations. See FCC v. ITT World
Commc’ns, Inc., 466 U.S. 463, 468 (1984).
Second, sections 703 and 704 of the APA apply only where “there is
no other adequate remedy” for the challenge of agency action. 5 U.S.C.
§ 704 (emphasis added). Walburg or Anda had several avenues to challenge
the validity of section 64.1200(a)(3)(iv) under the Hobbs Act. For example,
they could have petitioned the court of appeals to review the FCC order
adopting the rule. Alternatively, at any time after the rule became effective,
they could have petitioned the FCC to rescind the rule and obtained relief
from the agency or judicial review if the FCC denied that petition for
rulemaking. Walburg and Anda are subject to civil liability only because
they failed to timely challenge the validity of the FCC’s rule or seek relief
under the Hobbs Act before they violated that rule.

ARGUMENT

I.

BECAUSE THE PARTIES AGREE THAT SECTION
64.1200(A)(3)(IV) IS A VALID FCC REGULATION,
NON-PARTY ANDA’S ARGUMENTS ARE NOT
PROPERLY BEFORE THE COURT.

The parties to this appeal do not dispute that the FCC’s rule at issue in
this case was authorized by statute. Indeed, appellee Douglas Walburg has
conceded that “the validity of the FCC’s regulation is not at issue here.”
Walburg Response Brief at 15. Although Walburg now argues that section
4

2
227(b) did not authorize the FCC to adopt section 64.1200(a)(3)(iv), he
subsequently clarified that the FCC had authority to adopt the rule under
different provisions of the Communications Act. Walburg Response Brief at
3
16-19 (citing 47 U.S.C. §§ 154(i) 303(r)). Appellant Michael Nack agrees
that the FCC had authority to adopt section 64.1200(a)(3)(iv). See Nack
Reply Brief at 3-4.
While the parties agree that the FCC’s rule is not ultra vires, Anda – a
non-party amicus curiae that purports to support Walburg – flatly contradicts
Walburg’s position on this issue. See Anda Brief at 16 (“the FCC acted ultra
vires in enacting [section 64.1200(a)(3)(iv)].”). In an effort to interject this
new argument into this case, Anda contends that sections 703 and 704 of the
APA, 5 U.S.C. §§ 703-04, give the Court jurisdiction to entertain a collateral

2 Walburg initially told this Court that section 64.1200(a)(3)(iv) was
“promulgated under the grant of authority that Congress gave the FCC under
. . . [s]ection 227(b)(2).” Walburg Opening Brief at 20.
3 In his Responsive Brief, Walburg also appears to have asserted that
section 64.1200(a)(3)(iv) violates the First Amendment if the rule was
promulgated under the TCPA and subjects Walburg to monetary damages.
Because Walburg did not raise that issue in the district court or in his opening
brief, that argument is not properly before the Court. See, e.g., Ritchie
Capital Mgmt., L.L.C. v. Jeffries
, 653 F.3d 755, 763 n.4 (8th Cir. 2011) (court
declines to consider issue not properly raised in district court); Waldner v.
Carr
, 618 F.3d 838, 847 (8th Cir. 2010) (failure to raise issue in opening brief
results in waiver); K.D. v. Cnty. of Crow Wing, 434 F.3d 1051, 1055 n.4 (8th
Cir. 2006) (same).
5

attack on the validity of section 64.1200(a)(3)(iv) in a private civil action
(such as the present case), but only “to the extent this Court concludes . . .
that Walburg is challenging the substantive validity of the FCC’s
[r]egulation.” Anda Brief at 4, 8, 11.
It is well-established under this Court’s precedent that, “[an] amicus[]
cannot raise issues not raised by the parties.” Ne. Pharm. & Chem. Co., 810
F.2d at 732. Accord United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 61
(1981); Solis v. Summit Contractors, Inc., 558 F.3d 815, 826 n.6 (8th Cir.
2009). Because Walburg is not challenging “the validity of the FCC’s
regulation,” Walburg Response Brief at 15, and appellant Nack agrees that
the FCC’s rule is valid, Anda’s new arguments are not properly before the
4
Court.

4 Anda emphasizes that the FCC in its amicus brief stated that Walburg had
raised a “‘thinly veiled challenge to the validity’” of section 64.1200(a)(3).
Anda Brief at 2, 8 n.4 (quoting FCC Brief at 20). The FCC made that
statement before Walburg clarified that he is not challenging the validity of
the rule. Anda inexplicably ignores Walburg’s own disavowal of any intent
to challenge the lawfulness of section 64.1200(a)(3).
6

II.

THE COURT LACKS JURISDICTION TO RULE ON
THE SUBSTANTIVE VALIDITY OF SECTION
64.1200(A)(3)(IV).

A. The Hobbs Act Precludes A Collateral Challenge To The

FCC Rule In A Private Civil Action.

Even if an amicus could raise these issues in the context of this case,
the issues are not properly presented in this forum. With the exception of
5
certain narrowly defined categories of cases not involved here, section
402(a) of the Communications Act requires “[a]ny proceeding” challenging
final action in an FCC order to be brought under the Hobbs Act, 28 U.S.C.
§ 2341 et seq. 47 U.S.C. § 402(a) (emphasis added). In such proceedings,
the courts of appeals have “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(1) (emphasis added). To invoke that jurisdiction, a litigant must file a
petition for review with the court of appeals within 60 days after entry of the
FCC’s order. 28 U.S.C. § 2344. As this Court has explained, the Hobbs Act
“prescribes the sole conditions under which the courts of appeals have
jurisdiction to review the merits of FCC orders.” Vonage Holdings Corp. v.

5Section 402(b) gives the District of Columbia Circuit exclusive jurisdiction
to review specific categories of cases that primarily involve FCC licensing
decisions. 47 U.S.C. § 402(b). Neither Anda, nor either of the parties to this
case, suggests that provision applies here.
7

Minnesota Pub. Serv. Comm’n, 394 F.3d 568, 569 (8th Cir. 2004) (emphasis
added).
The framework established by the Hobbs Act “ensure[s] [that] review
[is] based on an administrative record made before the agency charged with
implementation of the statute,” United States v. Any and All Radio Station
Transmission Equip., 207 F.3d 458, 463 (8th Cir. 2000). It gives the court of
appeals, before adjudicating the validity of an FCC regulation, the benefit of
the views of the expert agency that promulgated the rule. And it gives the
FCC the opportunity to defend its own rule as a party to the case. See 28
U.S.C. § 2344.
Anda’s contention that a litigant in a private civil action brought in
district court has “a right to challenge the substantive validity” of section
64.1200(a)(3)(iv), Anda Brief at 3-4, disregards the jurisdictional limitations
of the Hobbs Act. By making Hobbs Act jurisdiction “exclusive,” Congress
“cut[] off original jurisdiction in other courts in all cases covered by that
statute.” Telecomm. Res. & Action Ctr. v. FCC, 750 F.2d 70, 77 (D.C. Cir.
1984). See United States v. Neset, 235 F.3d 415, 421 (8th Cir. 2000). The
Hobbs Act thus removes from the district courts (and, as in this case, courts
of appeals in reviewing district court rulings) any jurisdiction they otherwise
would have to entertain “collateral attacks on . . . FCC order[s].” Vonage,
8

394 F.3d at 569. See ITT Worldcom, 466 U.S. at 468-69 (“[l]itigants may not
evade” exclusivity provision of Hobbs Act “by requesting the [d]istrict
[c]ourt to enjoin action that is the outcome of the agency’s order.”). As this
Court has held, that statutory denial of jurisdiction applies to challenges to an
FCC rule (such as the one here) that are presented as a defense in a civil
action. Any and All Radio Station Transmission Equip., 207 F.3d at 463 (A
“defensive attack on the FCC regulation[] is as much an evasion of the
exclusive jurisdiction . . . [prescribed in the Hobbs Act] as is a preemptive
strike.”).

B. Sections 703 and 704 Of The APA Do Not Permit The

Court To Entertain Collateral Challenges To The
Substantive Validity Of FCC Rules.

Contrary to Anda’s contention, sections 703 and 704 of the APA do not
create an “exception to the Hobbs Act limits on judicial review” that would
permit the Court to entertain a collateral challenge to the validity of section
64.1200(a)(3)(iv). See Anda Brief at 4. As the Supreme Court has explained,
Congress “did not intend th[e] general grant of jurisdiction [in the APA] to
duplicate the previously established special statutory procedures relating to
specific agencies.” Bowen v. Massachusetts, 487 U.S. 879, 903 (1988).
Thus, the existence of “another statutory scheme of judicial review,” such as
9

the Hobbs Act, “preclude[s] review under the more general provisions of the
6
APA.” Bangura v. Hanson, 434 F.3d 487, 501 (6th Cir. 2006).
Anda’s jurisdictional argument would require the Court to disregard
the statutory limits on its subject-matter jurisdiction. That argument, if
accepted by the Court, would transform the “exclusive jurisdiction” (28
U.S.C. § 2342(1)) that Congress conferred on the courts of appeals to review
final action taken in FCC rulemaking orders under the specific Hobbs Act
procedures into a broad grant of jurisdiction to both federal appellate and
7
district courts to review Commission orders in a wide array of cases.
Particularly troubling, it would enable litigants to bypass the Hobbs Act

6 See also Whitney Nat'l Bank in Jefferson Parish v. Bank of New Orleans
& Trust Co., 379 U.S. 411, 420 (1965) (“where Congress has provided
statutory review procedures designed to permit agency expertise to be
brought to bear on particular problems, those procedures are to be
exclusive”).
7 Anda asserts that this Court in Any and All Radio Station Transmission
Equip.
, 207 F.3d 458, “recognized an exception to the Hobbs Act
jurisdictional limits.” Anda Brief at 9. Anda misreads that decision. The
Court, in affirming the district court’s determination that it lacked jurisdiction
to entertain a collateral challenge to an FCC rule, squarely held that the
Hobbs Act procedures are the sole means by which a litigant can contest the
validity of an FCC regulation. The Court pointed out that its holding was
supported by “authoritative[]” Supreme Court precedent. 207 F.3d at 463
(citing ITT Worldcom, 466 U.S. at 468). Although the Court opined that the
case “might” (not would) be different if the litigant “had no way of obtaining
judicial review of the regulations,” the Court explained that the Hobbs Act in
fact provided the litigant with an adequate remedy. Id.

10

procedures in which a court of appeals adjudicates the validity of an FCC rule
based upon its review of an FCC record in a case in which the FCC is a
respondent. It would permit a litigant to raise a collateral challenge to an
FCC rule in a private civil action where the FCC has no opportunity to defend
its rule because it is not a party and may not even be aware that the validity of
its rule is under attack.

C. The Hobbs Act Enables Litigants To Challenge The

Substantive Validity Of FCC Rules And Provides
Litigants The Opportunity To Obtain Full Relief.

As Anda acknowledges, the APA’s general review provisions apply
only if “there is no other adequate remedy in a court.” 5 U.S.C. § 704
(emphasis added). Anda claims that those general review provisions apply
here because “parties like Walburg have no way to challenge the substantive
validity of [section 64.1200(a)(3)(iv)]. Anda Brief at 4. Anda is wrong.
The Hobbs Act broadly authorizes the courts of appeals “to enjoin, set
aside, suspend (in whole or in part), or to determine the validity of” final
actions taken in FCC rulemaking orders, 28 U.S.C. § 2342. Had Walburg or
Anda wished to challenge the validity of section 64.1200(a)(3)(iv), they could
have invoked that jurisdiction in several different ways. Within 30 days after
the FCC adopted section 64.1200(a)(3)(iv), they could have challenged the
rule’s validity in a timely petition for agency reconsideration, see 47 U.S.C.
11

§ 405; if the FCC denied reconsideration, they could have timely filed a
petition for review of the order adopting the rule under the Hobbs Act. See
ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270 (1987). They also could
have challenged the validity of section 64.1200(a)(3)(iv) at any time by filing
with the FCC a petition to repeal the rule (5 U.S.C. § 553(e); 47 C.F.R.
§ 1.401); if the FCC denied that rulemaking petition, they could have sought
judicial review of that denial under the Hobbs Act. Thus, there is simply no
basis for Anda’s assertion that it or Walburg lacked any opportunity to
8
challenge the validity of section 64.1200(a)(3)(iv). Anda Brief at 3.
Anda argues in effect that the Hobbs Act remedies are inadequate
because a challenge to the validity of section 64.1200(a)(3)(iv) if successful
would invalidate the rule only prospectively and thus not relieve Walburg or

8 Anda is wrong in claiming that the “FCC’s” dismissal of its petition for
declaratory ruling shows that the Hobbs Act remedies are inadequate. See
Anda Brief at 6. To begin with, the FCC’s staff in the Consumer &
Governmental Affairs Bureau, not the five-member Commission itself,
dismissed Anda’s petition. Anda has filed a application for review of the
FCC staff’s order with the full Commission, which has not yet issued a ruling
on that application. Anda may file for (Hobbs Act) review if it is aggrieved
after the FCC issues its decision. In any event, Anda’s request for a
declaratory ruling is irrelevant to its arguments before this Court. Anda asked
the FCC to declare that it had enacted section 64.1200(a)(3)(iv) under
statutory authority other than 47 U.S.C. § 227(b). Anda Petition for
Declaratory Ruling, CG Docket No. 05-338 (Nov. 30, 2010) at 1. The FCC’s
ultimate disposition of that request (whatever that may be) has no bearing on
whether Congress in the Hobbs Act provided an adequate remedy to a litigant
seeking to challenge the substantive validity of section 64.1200(a)(3)(iv).
12

Anda from civil liability for their past violations of the rule. The prohibition
on retroactive agency rulemaking – a basic requirement of due process – does
not, however, render inadequate the Hobbs Act remedies. Walburg and Anda
are subject to civil liability only if they chose to violate a binding FCC rule in
effect at the time without first challenging its lawfulness. Had they contested
the validity of section 64.1200(a)(3)(iv) under the Hobbs Act, and prevailed
in that challenge before engaging in conduct that may have violated the rule,
they would not be subject to liability in a private civil action. “‘A legal
remedy is not inadequate for purposes of the APA because . . . [a litigant]
deprived [himself] of an opportunity to pursue that remedy.’” Turner v.
United States, 449 F.3d 536, 541 (3d Cir. 2006) (quoting Town of Sanford v.
9
United States, 140 F.3d 20, 23 (1st Cir. 1998)).
Finally, Anda’s APA argument is similar to the one advanced in Sable
Commc’ns of Calif. v. FCC, 827 F.2d 640 (9th Cir. 1987). In that case, Sable
had argued that the district court had jurisdiction to entertain a challenge to
the lawfulness of an FCC rule under section 704 of the APA because the
Hobbs Act procedures were inadequate. The court of appeals, in rejecting

9 See also Mitchell v. United States, 930 F.2d 893, 897 (Fed. Cir. 1991)
(“[T]he question posed by APA [s]ection 704 is whether [there are] adequate
remedies, not whether [a particular litigant] will be entitled to receive those
remedies.”)
13

that claim, held that the Hobbs Act review procedures were adequate, but that
Sable had failed to avail itself of those procedures by timely filing a petition
for review of the FCC order adopting the rule. The Court explained that
“Sable was responsible for its own failure to challenge the regulation in a
timely manner.” Id. at 643. The Court also pointed out that Sable’s APA
argument, if accepted by the Court, “would effectively obliterate the
exclusive jurisdiction provision of [the Hobbs Act].” Id.
As in Sable, the Hobbs Act provides a fully adequate remedy for a
challenge of section 64.1200(a)(3)(iv), but Walburg and Anda chose not to
pursue that remedy. In such circumstances, sections 703 and 704 do not
authorize a collateral challenge to the rule.
14

CONCLUSION

Because the Court lacks jurisdiction over non-party Anda’s challenge
to the validity of section 64.1200(a)(3)(iv), it should not consider that
challenge.
Respectfully
submitted,

SEAN LEV
GENERAL COUNSEL

PETER KARANJIA
DEPUTY GENERAL COUNSEL

JACOB M. LEWIS
ASSOCIATE GENERAL COUNSEL

/s/ Laurel R. Bergold

LAUREL R. BERGOLD
COUNSEL

FEDERAL COMMUNICATIONS
COMMISSION
WASHINGTON, D.C. 20554
(202) 418-1740
August 21, 2012
15

IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT


MICHAEL R. NACK, INDIVIDUALLY AND ON
BEHALF OF
ALL OTHERS SIMILARLY SITUATED,
PLANTIFF-APPELLANT,
NO. 11-1460
v.

DOUGLAS PAUL WALBURG,
DEFENDANT-APPELLEE.



CERTIFICATE OF COMPLIANCE

Pursuant to the requirements of Fed. R. App. P. 32(a)(7), I hereby
certify that the accompanying Supplemental Amicus Brief in the captioned
case contains 3,190 words.

/s/ Laurel R. Bergold
Laurel R. Bergold

Counsel
Federal Communications Commission
Washington, D.C. 20554
(202) 418-1740 (Telephone)
(202) 418-2819 (Fax)
August 21, 2012



11-1460

IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT


Michael R. Nack, Plaintiff-Appellant
v.

Douglas Paul Walburg, Defendant-Appellee.


CERTIFICATE OF SERVICE


I, Laurel R. Bergold, hereby certify that on August 21, 2012, I electronically filed the
foregoing Motion for Leave to File Supplemental Amicus Brief of the Federal
Communications Commission with the Clerk of the Court for the United States Court
of Appeals for the Eighth 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.


Phillip A. Bock
Max G. Margulis
Bock & Hatch
Margulis Law Group
134 N. Lasalle Street
28 Old Belle Monte Road
Suite 1000
Chesterfield, MO 63017
Chicago, IL 60602
Counsel for: Michael R. Nack
Counsel for: Michael R. Nack



Brian J. Wanca
Patrick A. Bousquet
Anderson & Wanca
Robert L Carter
3701 Algonquin Road
Russell F. Watters
Suite 760
Timothy J. Wolf
Rolling Meadows, IL 60008
Brown & James
Counsel for: Michael R. Nack
1010 Market Street
20th Floor
St. Louis, MO 63101
Counsel for: Douglas Paul Walburg


Eric L. Samore
Jeffrey W. Muskopf
Yesha Sutaria
SmithAmundsen LLC
SmithAmundsen LLC
12312 Olive Blvd.
150 North Michigan Avenue
Suite 100
Suite 3300
St. Louis, MO 63141
Chicago, IL 60601
Counsel for: Anda, Inc.
Counsel for: Anda, Inc.


Matthew A. Brill
Alexander Maltas
Matthew T. Murchison
Latham & Watkins LLP
555 Eleventh Street, N.W.
Suite 110
Washington, D.C. 20004
Counsel for: Anda, Inc.



/s/ Laurel R. Bergold

Document Outline

  • FCC Motion For Leave To File Supplemental Brief
    • motionfor leave to file brief
    • Nack v Walburg CoS 11-1460
  • ATTACHMENT
  • Supplemental Amicus Brief (Template Version)
  • Nack v Walburg CoS 11-1460

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