Cybersecurity Policy Report, Supreme Court Gives Trial Court Room to Rule on FCC’s TCPA Interpretation, (Jun 20, 2025)

By Jeff Williams

In a case stemming from a private dispute over unsolicited faxes under the Telephone Consumer Protection Act (TCPA), the Supreme Court on a 6-3 vote held that it “sees no good rationale” for finding that the Hobbs Act, which gives federal appeals courts exclusive jurisdiction over pre-enforcement challenges of final agency orders, requires a district court to “afford absolute deference” to an agency’s interpretation of a statute.

An FCC order issued while the dispute between fax sender McKesson Corp. and recipient McLaughlin Chiropractic Association was pending before the U.S. District Court for the Northern District of California held that the TCPA does not apply to unauthorized faxes sent to online fax services, which some of the McKesson faxes to parties in the then certified class were (CPR, Jan. 22). In a decision later affirmed by the U.S. Court of Appeals for the Ninth Circuit (San Francisco), the district court deemed the FCC’s decision binding and granted summary judgment to McKesson on its claims involving online fax services.

Writing for the majority in the Supreme Court’s reversal and remand in the case, Justice Brett Kavanaugh said, “The Hobbs Act does not preclude district courts in enforcement proceedings from independently assessing whether an agency’s interpretation of the relevant statute is correct. Here, therefore, the District Court should interpret the TCPA under ordinary principles of statutory interpretation, affording appropriate respect to the agency’s interpretation” (McLaughlin Chiropractic Associates, Inc., v. McKesson Corp., et al., No. 23-1226 (U.S. June 20, 2025)).

Justice Kavanaugh was joined in the decision by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett. Justice Elena Kagan, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, filed a dissenting opinion.

Mr. Kavanaugh wrote that the “[f]undamental principles of administrative law” establish that the “proper default rule” for pre-enforcement review statutes that do not expressly preclude or authorize judicial review in future enforcement proceeding is that “a district court must independently determine for itself whether the agency’s interpretation of a statute is correct. District courts are not bound by the agency’s interpretation, but instead must determine the meaning of the law under ordinary principles of statutory interpretation, affording appropriate respect to the agency’s interpretation.”

Justice Kavanaugh wrote, “To be clear, the default rule is only a default, meaning that it applies only absent congressional indication otherwise. When Congress wants to preclude judicial review in enforcement proceedings, it can easily say so.”

The default rule “also avoids unnecessary litigation and unfairness,” he said. “It would be impractical—and an enormous waste of resources—to demand that every potentially affected party bring or join pre-enforcement Hobbs Act challenges against every agency rule or order that might possibly affect them at some point in the future.”

During the Jan. 21 oral argument in the case, Matthew Wessler, attorney for McLaughlin, argued that because Hobbs Act challenges must be brought within 60 days of publication of an order, parties who might not know that they would be subjected to unsolicited faxes years later did not have an adequate opportunity to challenge the FCC’s order.

In her dissent, Justice Kagan wrote that the majority opinion “evades the Hobbs Act’s most natural meaning by relying on a novel ‘default rule,’ which demands that Congress use a certain form of words—really, that Congress create statutory redundancy—to preclude parties from bringing down-the-road challenges to agency action. That rule has no foundation in our law; it emerges fully formed today from the majority’s head. And it prevents the Hobbs Act from functioning as Congress wanted—by allowing regulated parties to end-run the Act’s pre-enforcement judicial review scheme, and thereby undermine the stability and efficacy of administrative programs.”

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