Overview
The Administrative Orders Review Act, more commonly known as the Hobbs Act, grants the federal courts of appeals "exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of all final orders of the [FCC] made reviewable by section 402(a) of title 47." 28 U.S.C. § 2342(1). Courts have found that the Hobbs Act's grant of "exclusive jurisdiction" to the circuit courts bars district courts from considering any argument that the Federal Communications Commission (FCC), the agency responsible for administering the Telephone Consumer Protection Act (TCPA), misinterpreted the TCPA in a final agency order, no matter how markedly the agency's interpretation might differ from the statute's plain language. At times, the FCC has issued orders that expand the TCPA's reach quite substantially. Pursuant to the Hobbs Act, district courts have considered themselves bound to follow those FCC orders.
But, not anymore. This past Friday, the United States Supreme Court issued a 6-3 opinion in McLaughlin Chiropractic Assocs., Inc. v. McKesson Corp., 606 U.S. ___, 2025 WL 1716136 (June 20, 2025), holding in no uncertain terms that district courts are not bound by the FCC's interpretation of the TCPA. This decision has the potential to upend years of TCPA precedent.
A. McLaughlin Chiropractic Assocs., Inc. v. McKesson Corp.
In McLaughlin, the Supreme Court was called upon to decide whether the FCC's interpretation of the TCPA's "junk fax" provision, which prohibits the sending of unsolicited fax advertisements from a "telephone facsimile machine, computer, or other device" to a "telephone facsimile machine" absent an opt-out notice informing the recipient that they may request to no longer receive future fax advertisements, must reflexively be followed by the judiciary. Notably, while the TCPA prohibits the use of a "telephone facsimile machine, computer, or other device" to send an unsolicited fax advertisement, it must be received on a "telephone facsimile machine"—not on a "computer[ ] or other device"—in order for there to be a violation of the Act. 47 C.F.R. § 64.1200(a)(4). A "telephone facsimile machine," in turn, is a defined term, meaning a traditional fax machine that automatically reduces the content of an incoming fax to print, using the recipient’s paper and toner. Id. § 64.1200(f)(14). In other words, a fax advertisement may be sent by essentially any electronic means, but it must be received on a traditional paper-and-toner fax machine in order to be actionable. That is what the statute says.
In 2019, the FCC issued an Order interpreting what does and does not constitute a telephone fax machine. Consistent with the plain language of the statute, the FCC concluded that an "online fax service" (so-called "e-faxes," which are received via email) is not a "telephone facsimile machine" and, thus, e-faxes are not governed by the TCPA's general junk fax prohibition. Before the FCC handed down its 2019 Order, the McLaughlin district court certified a class of recipients of the defendant's faxes, without distinguishing between class members who received e-faxes versus those who received the faxes on a traditional fax machine. Subsequently, and with the benefit of the FCC's ruling, the court decertified the class, finding that it would have to make a class member-by-class member inquiry into what type of machine the faxes were received upon, which militated against class certification. At the intermediate appellate stage, the Ninth Circuit affirmed; it applied the 2019 FCC Order, finding that that Order was binding on the district court.
The Supreme Court granted certiorari to review the question of whether the FCC's Order is binding on the district court. The Supreme Court reached a different conclusion. Specifically, the court made abundantly clear that district courts are not bound by the FCC's statutory construction of the TCPA. Rather, district courts must independently determine the statute’s meaning under ordinary canons of statutory interpretation:
- "In civil enforcement proceedings under the [TCPA], are district courts bound by the [FCC's] interpretation of the Act? The answer is no."
- "According to McKesson and the government, the District Court in this case was absolutely bound by the FCC's interpretation of the TCPA. We disagree. The Hobbs Act does not preclude district courts in enforcement proceedings [e.g., civil suits brought by private parties] 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 . . ."
- "[A] critical follow-on question is whether the Hobbs Act bars different parties in subsequent enforcement proceedings from arguing—and district courts from concluding—that the agency incorrectly interpreted the statute. The answer is no."
- "In an enforcement proceeding, 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."
- "[T]he default rule is that district courts in enforcement proceedings may conclude that an agency's interpretation of a statute is incorrect."
- "[D]istrict court review does not conflict with the Hobbs Act. . . . [The Hobbs Act] does not bar districts in enforcement proceedings from independently interpreting the meaning of the statute at issue.”
- "The [Hobbs] Act does not purport to address, much less preclude, district court review in enforcement proceedings. So, the District Court in this enforcement proceeding can decide what the statute means under ordinary principles of statutory interpretation . . ."
- "As McKesson and the government see things, when the initial window for pre-enforcement review closes, no one can argue in court that the agency's interpretation of a statute is incorrect—no matter how wrong the agency’s interpretation might be. In other words, their argument would require the District Court to afford absolute deference to the agency. We see no good rationale for reading the Hobbs Act to embody such an absolute-deference rule. The District Court is not bound by the FCC's interpretation of the TCPA. The District Court should interpret the statute as courts traditionally do under ordinary principles of statutory interpretation . . ." (Emphasis in original.)
Because the Ninth Circuit had relied on the 2019 FCC Order to support its decision, the Supreme Court remanded the case to allow the lower court to evaluate independently whether e-faxes are subject to the TCPA’s junk fax provision.
It bears noting that, in a different junk fax case, Career Counseling, Inc. v. Amerifactors Financial Grp., LLC, 91 F.4th 202 (4th Cir. 2024), the Fourth Circuit applied a plain language statutory analysis to reach the same conclusion as the Ninth Circuit initially did in McLaughlin—that a putative junk fax class action could not be certified because there was no way to tell on a classwide basis whether recipients of the defendant's faxes received them on traditional fax machines (actionable) as opposed to an online fax service (not actionable).
B. The Impact of McLaughlin on TCPA Calling and Text Messaging Cases
With the benefit of the Supreme Court's McLaughlin decision, courts are now free to construe the TCPA in accordance with traditional methods of statutory interpretation. This new latitude in the district courts has the potential for a significant impact on FCC orders that had been accepted by some courts as gospel in TCPA practice over the course of years.
For instance, in July 2003, the FCC issued an Order finding that, under the TCPA, cell phones may qualify as "residential" telephones and text messages are encompassed within the statute's reference to telephone "calls." That Order does not conform to the statutory text. Language within the TCPA treats communications to cellular and "residential" telephones differently. The statute explicitly distinguishes between the two types of lines, with some provisions limited expressly to "cellular telephones," such as the restriction on use of an autodialer, 47 U.S.C. § 227(b)(1)(A)(iii), and others limited to "residential" telephones, like the do-not-call rules and Section 227(b)(1)(B)'s prohibition on the use of artificial or prerecorded voices. Likewise, the statute contains subsections relating to "text messages" and "text messaging services," and others that govern "calls" without mention of text messages. In fact, the TCPA contains a definition for "text message," which makes clear that "text messages" are not "real time, two-way voice . . . communication[s]," i.e., calls. Id. § 227(e)(8)(C)(iii). The statute further differentiates between calls and text messages, explaining that "a call [is] made using a voice service" whereas a "text message [is] sent using a text messaging service." Id. § 227(e)(8)(A).
What does McLaughlin mean for cases implicating these fundamental TCPA issues? We may well (and should) see courts holding that, because they are no longer hamstrung by the FCC's July 2003 Order, that cell phones, which are not tethered to a residence, cannot be "residential" telephones under the TCPA's do-not-call provisions and that text messages are not synonymous with "calls." (As to the latter, Justice Thomas has openly questioned "why a text message is considered a call under the TCPA" at all. Tr. of Oral Argument at 7:11–14, Facebook, Inc. v. Duguid, 592 U.S. 395 (2021) (No. 19-511)). Indeed, a number of courts have reached such conclusions already under the TCPA and other calling-related statutes, such as the Texas Telemarketing Registration Act (TTRA) and New Mexico's telephonic "stalking" statute. Both the TTRA and New Mexico law are phrased in terms of "calls" or "calling," and, for those reasons, they historically have not extended to text messages. Similarly, one would be hard-pressed to find any Federal Trade Commission enforcement of the Telemarketing Sales Rule's (TSR) do-not-call rules in the context of marketing text messages. The TSR, like the TCPA's analogous do-not-call provisions, is phrased in terms of telephone "calls" and is silent with respect to the Rule’s applicability to text messages.
There are remedies, however, expanding the TCPA is a legislative function; it is not the responsibility of courts. Rather, the role of a court is to construe statutes as they are written. If the TCPA is to be broadened, Congress can do so, much like Texas just did in expanding the TTRA's definition of "telephone solicitation" to include not just calls but, also, other "transmissions" such as "text or graphic message[s]" specifically.
