Late last year, the U.S. Supreme Court granted certiorari in PDR Network, LLC v. Carlton & Harris Chiropractic (No. 17-1705), addressing the issue of whether the Hobbs Act requires the district court to accept the Federal Communication Commission’s (FCC’s) legal interpretation of the Telephone Consumer Protection Act (TCPA). In 1991, Congress passed the TCPA to restrict telephone solicitations and use of automated telephone equipment, charging the FCC with interpretation and rulemaking authority over the Act. In 2005, the TCPA was amended to include the Junk Fax Prevention Act (JFPA) that restricted the use of the fax machines to deliver unsolicited advertising. Shortly after, the FCC issued 2006 FCC Rule, which inter alia, provided guidance on the 2005JFPA amendment.   At issue before the Court, is the FCC’s interpretation of the definition of “unsolicited advertisements” in the context of the JFPA, found in the 2006 FCC Rule.

The Fourth Circuit, in PDR Network, held that the district court erred in refusing to defer to the FCC’s interpretation of the definition of “unsolicited advertisement” under the TCPA. Specifically, the district court ruled that a fax advertisement for free services did not qualify as an “unsolicited advertisement” under the law, despite the 2006 FCC Rule which stated that “even at no cost”, a fax message promoting good and services qualified as an unsolicited advertisement”.

Although PDR Network centers on a dispute over “junk faxes”, its implications extend far beyond. The Court will address a broad range of issues dealing with the scope of deference under the Hobbs Act and its interplay with the Chevron doctrine. The Hobbs Act provides exclusive jurisdiction to the Court of Appeals, in challenges to final orders issued by six federal agencies, including the FCC. To complicate matters, the Chevron doctrine, an administrative law principle derived from the Supreme Court case, compels federal courts, regardless of level, to adhere to agency interpretation of a statute it administers unless the court finds Congress’s language in the statute “clear and unambiguous”. Thus, a dilemma arises when a district court is adjudicating a case involving a final ordered issued by one of the six federal agencies regulated by the Hobbs Act. Does the Hobbs Act strip the district court of its ability to apply the Chevron deference?

Ultimately, the Court will conclude whether the district court is automatically bound by federal agency interpretation under the Hobbs Act, or has some leeway to ignore such interpretation, as allotted under Chevron when it deems statutory language “clear and unambiguous”. The Court’s ruling is timely, as the FCC is scheduled to issue rules regarding several significant TCPA issues in the coming year.

On a practical level, if the Court rules in favor of greater district court discretion, TCPA litigation will likely become much more unpredictable and costly. With regulatory, legislative, and judicial developments imminent, 2019 is shaping up to be an interesting year for the TCPA. We will continue to update as TCPA developments unfold. Stay tuned for our upcoming TCPA post on the circuit split over what constitutes an “Automatic Dialing Telephone System” (ATDS).

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Photo of Jason C. Gavejian Jason C. Gavejian

Jason C. Gavejian is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. and a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Mr. Gavejian focuses on the matrix of laws governing privacy, security, and management of data. Mr. Gavejian is Co-Editor of, and a regular contributor to, the firm’s Workplace Privacy, Data Management & Security Report blog.

Mr. Gavejian’s work in the area of privacy and data security includes counseling international, national, and regional companies on the vast array of privacy and security mandates, preventive measures, policies, procedures, and best practices. This includes, but is not limited to, the privacy and security requirements under state, federal, and international law (e.g., HIPAA/HITECH, GDPR, California Consumer Privacy Act (CCPA), FTC Act, ECPA, SCA, GLBA etc.). Mr. Gavejian helps companies in all industries to assess information risk and security as part of the development and implementation of comprehensive data security safeguards including written information security programs (WISP). Additionally, Mr. Gavejian assists companies in analyzing issues related to: electronic communications, social media, electronic signatures (ESIGN/UETA), monitoring and recording (GPS, video, audio, etc.), biometrics, and bring your own device (BYOD) and company owned personally enabled device (COPE) programs, including policies and procedures to address same. He regularly advises clients on compliance issues under the Telephone Consumer Protection Act (TCPA) and has represented clients in suits, including class actions, brought in various jurisdictions throughout the country under the TCPA.

Mr. Gavejian represents companies with respect to inquiries from the HHS/OCR, state attorneys general, and other agencies alleging wrongful disclosure of personal/protected information. Mr. Gavejian negotiates vendor agreements and other data privacy and security agreements, including business associate agreements. His work in the area of privacy and data security includes counseling and coaching clients through the process of investigating and responding to breaches of the personally identifiable information (PII) or protected health information (PHI) they maintain about consumers, customers, employees, patients, and others, while also assisting clients in implementing policies, practices, and procedures to prevent future data incidents.

Mr. Gavejian represents management exclusively in all aspects of employment litigation, including restrictive covenants, class-actions, harassment, retaliation, discrimination, and wage and hour claims in both federal and state courts. Mr. Gavejian regularly appears before administrative agencies, including the Equal Employment Opportunity Commission (EEOC), the Office for Civil Rights (OCR), the New Jersey Division of Civil Rights, and the New Jersey Department of Labor. Mr. Gavejian’s practice also focuses on advising/counseling employers regarding daily workplace issues.

Mr. Gavejian’s litigation experience, coupled with his privacy practice, provides him with a unique view of many workplace issues and the impact privacy, data security, and social media may play in actual or threatened lawsuits.

Mr. Gavejian regularly provides training to both executives and employees and regularly speaks on current privacy, data security, monitoring, recording, BYOD/COPE, biometrics (BIPA), social media, TCPA, and information management issues. His views on these topics have been discussed in multiple publications, including the Washington Post, Chicago Tribune, San Francisco Chronicle (SFGATE), National Law Review, Bloomberg BNA, Inc.com, @Law Magazine, Risk and Insurance Magazine, LXBN TV, Business Insurance Magazine, and HR.BLR.com.

Mr. Gavejian is the Co-Chair of Jackson Lewis’ Hispanic Attorney Resource Group, a group committed to increasing the firm’s visibility among Hispanic-American and other minority attorneys, as well as mentoring the firm’s attorneys to assist in their training and development. Mr. Gavejian also previously served on the National Leadership Committee of the Hispanic National Bar Association (HNBA) and regularly volunteers his time for pro bono matters.

Prior to joining Jackson Lewis, Mr. Gavejian served as a judicial law clerk for the Honorable Richard J. Donohue on the Superior Court of New Jersey, Bergen County.