Insurance Group Neutral on FCC’s Motion to Dismiss Petition for Review of TCPA Order

The FCC’s Jan. 19 motion to dismiss the Insurance Marketing Coalition’s petition for review for lack of appellate jurisdiction because the petition is premature (see 2401190057) presents the question of what constitutes entry of a regulation under the Hobbs Act, IMC said in its response Thursday (docket 23-14125) in the 11th U.S. Circuit Court of Appeals.

IMC’s petition asks the 11th Circuit to vacate the FCC’s Dec. 18 order, which imposes several measures under the Telephone Consumer Protection Act, including codifying that the national do not call registry’s protections apply to unlawful text messages (see 2312220059). IMC’s petition contends that the order exceeds the FCC’s statutory authority and was adopted “without observance of procedure required by law.”

IMC agrees with the FCC that under precedent from the D.C. Circuit and other courts, entry occurs when a regulation is published in the Federal Register, said the response. “On that view,” IMC’s petition for review is “incurably premature” and must be dismissed because the regulations challenged in that petition haven’t yet been published in the FR, it said.

However, IMC doesn’t agree with the FCC “that the law is clear on that issue” in light of the “uncertainty arising” from court precedent, said the response. It cited the 5th Circuit’s 1976 decision in Chem-Haulers v. ICC and the D.C. Circuit’s decisions in Humane Society v. U.S. Department of Agriculture in 2022 and GPA Midstream Association v. U.S. Department of Transportation in 2023.

The 5th Circuit held in Chem-Haulers that entry of a regulation under the Hobbs Act occurs when the appealed order is final, complete and a matter of public record, said the response. The FCC order challenged in IMC’s petition “is a matter of public record” because the commission published it on its online docket Dec. 18, it said. The order also appears to be complete “because it contains the full text of the regulations” adopted by the commission and bears the signature of the commission’s secretary, it said. Whether the order is final under Chem-Haulers is less clear, it said.

The two D.C. Circuit decisions “further complicate the finality analysis,” said the response. In those cases, the D.C. Circuit “concluded, albeit in different contexts than the one presented here, that agency regulations are final and enforceable before they are published in the Federal Register,” it said.

If that rationale applies to entry of a regulation under the Hobbs Act, the window to petition for review of the FCC’s order began Dec. 18 when the commission published it online, said the response. That makes IMC’s petition “timely,” it said. IMC filed the “protective” petition for review in this suit “to account for that uncertainty,” it said.

IMC “takes no position” on whether its petition for review should be dismissed, said the response. If the 11th Circuit concludes that Chem-Haulers is consistent with the approach employed in the 1985 D.C. Circuit decision in Western Union v. FCC and advocated by the commission, “dismissal is warranted,” it said. But if the 11th Circuit determines that under Chem-Haulers, the order was entered when it was publicly released Dec. 18, then the FCC’s motion should be denied, it said.

IMC intends to file a second petition for review of the order soon after FR publication said the response. That’s a step that “could eliminate the need” for the 11th Circuit to resolve the question presented by the FCC’s motion, it said.