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Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC

United States Court of Appeals, Fourth Circuit

February 23, 2018

CARLTON & HARRIS CHIROPRACTIC, INC., a West Virginia Corporation, individually and as the representative of a class of similarly-situated persons, Plaintiff - Appellant,

          Argued: October 25, 2017

         Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert C. Chambers, District Judge. (3:15-cv-14887)


          Glenn Lorne Hara, ANDERSON WANCA, Rolling Meadows, Illinois, for Appellant.

          Jeffrey N. Rosenthal, BLANK ROME LLP, Philadelphia, Pennsylvania, for Appellees.

         ON BRIEF:

          Brian J. Wanca, ANDERSON WANCA, Rolling Meadows, Illinois; D. Christopher Hedges, David H. Carriger, THE CALWELL PRACTICE PLLC, Charleston, West Virginia, for Appellant.

          Ana Tagvoryan, BLANK ROME LLP, Los Angeles, California; Marc E. Williams, Robert L. Massie, NELSON, MULLINS, RILEY & SCARBOROUGH LLP, Huntington, West Virginia, for Appellees.

          Before DIAZ, THACKER, and HARRIS, Circuit Judges.

          DIAZ, Circuit Judge.

         Carlton & Harris Chiropractic, Inc. appeals from the district court's dismissal of its claim against PDR Network, LLC, PDR Distribution, LLC, PDR Equity, LLC, and John Does 1-10 (collectively, "PDR Network") for sending an unsolicited advertisement by fax in violation of the Telephone Consumer Protection Act (the "TCPA"), 47 U.S.C. § 227. Carlton & Harris argues that the district court erred in declining to defer to a 2006 Rule promulgated by the Federal Communications Commission (the "FCC") interpreting certain provisions of the TCPA. Specifically, Carlton & Harris contends that the Hobbs Act, 28 U.S.C. § 2342 et seq., required the district court to defer to the FCC's interpretation of the term "unsolicited advertisement." Additionally, to the extent that the district court interpreted the meaning of the 2006 FCC Rule, Carlton & Harris argues that the district court erred by reading the rule to require that a fax have some commercial aim to be considered an advertisement.

         Because the Hobbs Act deprives district courts of jurisdiction to consider the validity of orders like the 2006 FCC Rule, and because the district court's reading of the 2006 FCC Rule is at odds with the plain meaning of its text, we vacate the district court's judgment.


         We review a district court's dismissal under Fed.R.Civ.P. 12(b)(6) de novo, "assuming as true the complaint's factual allegations and construing all reasonable inferences in favor of the plaintiff." Semenova v. Md. Transit Admin., 845 F.3d 564, 567 (4th Cir. 2017) (internal quotation marks omitted).


         Carlton & Harris maintains a chiropractic office in West Virginia. PDR Network is a company that "delivers health knowledge products and services" to healthcare providers. J.A. 33. Among other things, PDR Network publishes the Physicians' Desk Reference, a widely-used compendium of prescribing information for various prescription drugs. PDR Network is paid by pharmaceutical manufacturers for including their drugs in the Physicians' Desk Reference.

         On December 17, 2013, PDR Network sent Carlton & Harris a fax. The fax was addressed to "Practice Manager" and its subject line announced: "FREE 2014 Physicians' Desk Reference eBook - Reserve Now." J.A. 23. The fax invited the recipient to "Reserve Your Free 2014 Physicians' Desk Reference eBook" by visiting PDR Network's website. Id. It included a contact email address and phone number. The fax touted various benefits of the e-book, noting that it contained the "[s]ame trusted, FDA-approved full prescribing information . . . [n]ow in a new, convenient digital format" and that the e-book was "[d]eveloped to support your changing digital workflow." Id. At the bottom of the fax, a disclaimer provided a phone number the recipient could call to "opt-out of delivery of clinically relevant information about healthcare products and services from PDR via fax." Id. Finally, the fax advised that Carlton & Harris had received the offer "because you are a member of the PDR Network." Id.


         Carlton & Harris sued PDR Network in the Southern District of West Virginia, asserting a claim under the TCPA. The TCPA, as amended by the Junk Fax Prevention Act of 2005, Pub. L. No. 109-21, 119 Stat. 359, generally prohibits the use of a fax machine to send "unsolicited advertisement[s]." 47 U.S.C. § 227(b)(1)(C). It creates a private cause of action that permits the recipient of an unsolicited fax advertisement to seek damages from the sender and recover actual monetary loss or $500 in statutory damages for each violation. 47 U.S.C. § 227(b)(3). If a court finds that the sender "willfully or knowingly violated" the TCPA, damages may be trebled. Id. Carlton & Harris seeks to represent a class of similarly situated recipients of unsolicited faxes offering free copies of the Physicians' Desk Reference e-book.

         PDR Network moved to dismiss the complaint under Rule 12(b)(6) for failure to state a claim. It argued that the fax offering the free e-book could not be considered an unsolicited advertisement as a matter of law because it did not offer anything for sale. In response, Carlton & Harris pointed to a 2006 FCC Rule interpreting the term "unsolicited advertisement." Pursuant to its statutory authority to "prescribe regulations to implement the requirements" of the TCPA, see 47 U.S.C. § 227(b)(2), the FCC promulgated a rule providing that "facsimile messages that promote goods or services even at no cost . . . are unsolicited advertisements under the TCPA's definition." See Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991; Junk Fax Prevention Act of 2005, 71 Fed. Reg. 25, 967, 25, 973 (May 3, 2006) (the "2006 FCC Rule"). Carlton & Harris argued that the fax it received was an unsolicited advertisement as defined in the 2006 FCC Rule because it promoted a good at no cost. Moreover, Carlton & Harris argued that the district court was obligated to follow the 2006 FCC Rule pursuant to the Hobbs Act.

         The district court disagreed. The court held that the Hobbs Act did not compel the court to defer to "the FCC's interpretation of an unambiguous statute." Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC, No. 3:15-14887, 2016 WL 5799301, at *4 (S.D. W.Va. Sept. 30, 2016). The district court considered the TCPA's own definition of "unsolicited advertisement" "clear and easy to apply, " and thus held that it was not required to follow the 2006 FCC Rule and "decline[d] to defer" to it. Id. (citing Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984)). The district court further held that even under the 2006 FCC Rule, PDR Network's fax was still not an advertisement because the rule requires an advertisement to have a "commercial aim, " and no such aim existed here. Id. Accordingly, the district court concluded that Carlton & Harris had not stated a valid claim under the TCPA and granted PDR Network's motion to dismiss. Id. This appeal followed.


         The question presented is whether and when a fax that offers a free good or service constitutes an advertisement under the TCPA. To resolve it, we must answer two more: first, must a district court defer to an FCC interpretation of the TCPA? And if so, what is the meaning of "unsolicited advertisement" under the 2006 FCC Rule? We address these issues in turn.


         The TCPA defines "unsolicited advertisement" to include "any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person's prior express invitation or permission, in writing or otherwise." 47 U.S.C. § 227(a)(5). In a typical case of statutory interpretation where an agency rule is involved, the familiar Chevron framework requires a court to first ask whether the underlying statute is ambiguous ("step one"). See Chevron, 467 U.S. at 843; Montgomery Cty., Md. v. F.C.C., 811 F.3d 121, 129 (4th Cir. 2015). Where a statute's meaning is clear on its face, the inquiry ends and the unambiguous meaning controls. Chevron, 467 U.S. at 842-43.

         In this case, the district court applied step one of Chevron to the TCPA's definition and found it to be unambiguous. Thus, it declined to defer to the FCC interpretation. We conclude, however, that the Hobbs Act, 28 U.S.C. § 2341 et seq., precluded the district court from even reaching the step-one question.

         The Hobbs Act, also known as the Administrative Orders Review Act, provides a mechanism for judicial review of certain administrative orders, including "all final orders of the Federal Communications Commission made reviewable by section 402(a) of title 47." 28 U.S.C. § 2342(1).[1] A party aggrieved by such an order may challenge it by filing a petition in the court of appeals for the judicial circuit where the petitioner resides or has its principal office, or in the Court of Appeals for the D.C. Circuit. 28 U.S.C. § 2343. The Hobbs Act specifically vests the federal courts of appeals with "exclusive jurisdiction" to "enjoin, set aside, suspend (in whole or in part), or to determine the validity of" the orders to which it applies, including FCC interpretations of the TCPA. See 28 U.S.C. § 2342. "This procedural path created by the command of Congress 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" charged with overseeing the TCPA. Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110, 1119 (11th Cir. 2014) (internal quotation marks omitted).

         The district court erred when it eschewed the Hobbs Act's command in favor of Chevron analysis to decide whether to adopt the 2006 FCC Rule. Federal district courts are courts of limited jurisdiction and "possess only that power authorized by Constitution and statute." Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005) (internal quotation marks omitted); U.S. Const. art. III, § 1. Where, as here, Congress has specifically stripped jurisdiction from the district courts regarding a certain issue, those courts lack the power and authority to reach it.

         This sort of "jurisdiction-channeling" provision, especially in the context of administrative law, is "nothing unique." Blitz v. Napolitano, 700 F.3d 733, 742 (4th Cir. 2012) (noting that "agency decisions are commonly subject to such" provisions and that "final agency actions are generally reviewed in the courts of appeals"). When Chevron meets Hobbs, consideration of the merits must yield to jurisdictional constraints. "[A]n Article III court's obligation to ensure its jurisdiction to resolve a controversy precedes any analysis of the merits . . . [A]rguing that the district court can put off considering its jurisdiction until after step one of Chevron . . . turns that traditional approach on its head." CE Design, Ltd. v. Prism Bus. Media, Inc., 606 F.3d 443, 447-48 (7th Cir. 2010). Indeed, a district court simply cannot reach the Chevron question without "rubbing up against the Hobbs Act's jurisdictional bar." Id. at 449. The district court had no power to decide whether the FCC rule was entitled to deference. By refusing to defer to the FCC rule and applying Chevron analysis instead, the court acted beyond the scope of its congressionally granted authority.

         Every other circuit to consider the issue has reached the same result. In Mais v. Gulf Coast Collection Bureau, Inc., the Eleventh Circuit reversed a district court finding that an FCC interpretation of the TCPA's "prior express consent" exception was inconsistent with the statute. 768 F.3d at 1113. The court held that because of the Hobbs Act, the district court "lacked the power to consider in any way the validity of the 2008 FCC Ruling." Id. The Eighth Circuit, in Nack v. Walburg, refused to consider whether an FCC interpretation of the TCPA "properly could have been promulgated" because the Hobbs Act "precludes us from entertaining challenges to the regulation." 715 F.3d 680, 682 (8th Cir. 2013). And in Leyse v. Clear Channel Broad., Inc., the Sixth Circuit held that the Hobbs Act "deprives the district court below-and this court on appeal-of jurisdiction over the argument that the exemption [to the TCPA] was invalid or should be set aside because of procedural concerns." 545 Fed.Appx. 444, 459 (6th Cir. 2013) (unpublished) (amending and superseding Leyse v. Clear Channel Broad. Inc., 397 F.3d 360 (6th Cir. 2012)).

         PDR Network urges us to instead follow the Sixth Circuit's decision in Sandusky Wellness Ctr., LLC v. Medco Health Sols., Inc., which also considered the meaning of "advertisement" under the TCPA. 788 F.3d 218 (6th Cir. 2015). But although Sandusky declined to defer to the 2006 FCC Rule because it found the statutory definition unambiguous, that decision made no mention of the Hobbs Act's jurisdictional bar nor ...

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