TCPA 'Merely A Pawn' In High Court Deference Fight
David Anthony, Alan Wingfield, Chad Fuller and Virginia Bell Flynn were quoted in a Law360 article titled, “TCPA 'Merely A Pawn' In High Court Deference Fight.” The article details a case in the U.S. Supreme Court that will address whether federal courts or regulators such as the Federal Communications Commission should have the final say on what the law means, in this case the Telephone Consumer Protection Act. At issue is whether the Hobbs Act requires federal courts to accept wholesale agencies' statutory readings, including the Federal Communications Commission's numerous orders interpreting the decades-old TCPA. Flynn and Fuller pointed out that, "In the end, the Supreme Court may be deciding whether a pro-business majority on the FCC cleans up the TCPA litigation disaster by providing predictable and workable rules that apply nationwide, or whether various courts across the country come up with answers one by one, ad hoc, ensuring that the lawyer fest will continue indefinitely." Flynn, Anthony and Wingfield noted that if the Supreme Court decides that courts do have the power to review final agency orders, that outcome would "throw current TCPA litigation into a free-for-all" by enabling the lower courts to interpret a range of contested statutory provisions in the way they saw fit until a circuit court stepped in with binding judicial guidance. They said, "Whether this would benefit plaintiff’s bar or defendants would depend on the court, but there is no question it will dramatically increase uncertainty and risk for any business with a significant telecommunications presence."