Justia Summary

PDR compiles information about prescription drugs. Its producer sent health care providers faxes stating that they could reserve a free copy of a new e-book PDR. A recipient filed a putative class action, claiming that the fax was an “unsolicited advertisement” prohibited by the Telephone Consumer Protection Act, 47 U.S.C. 227(b)(1)(C). The Fourth Circuit vacated the dismissal of the suit, reasoning that the district court was required to adopt the interpretation of “unsolicited advertisement” set forth in a 2006 FCC Order: “any offer of a free good or service.” The court noted that the Hobbs Act provides that courts of appeals have “exclusive jurisdiction to enjoin, set aside, suspend … or to determine the validity of” certain “final orders of the Federal Communication Commission,” in a challenge filed within 60 days after the entry of the order, 28 U.S.C. 2342(1).

The Supreme Court vacated and remanded for consideration of preliminary questions that were not considered below. Is the Order the equivalent of a “legislative rule,” issued by an agency pursuant to statutory authority, having the “force and effect of law” or is it the equivalent of an “interpretive rule,” which simply advises the public of the agency’s construction of the statutes and rules it administers? If the Order is the equivalent of an “interpretive rule,” a district court may not be required to adhere to it. In addition, did the Hobbs Act’s exclusive-review provision afford a “prior” and “adequate” opportunity to seek judicial review of the Order under 5 U.S.C. 703? If not, the Administrative Procedure Act may permit PDR to challenge its validity in this enforcement proceeding.

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