The U.S. Supreme Court has agreed to consider a case that could clarify whether the Hobbs Act, which limits judicial review of FCC final orders to appeals courts, means that district courts must accept the FCC’s interpretation of the Telephone Consumer Protection Act (TCPA).

The case, McLaughlin Chiropractic Associates Inc. v. McKesson Corporation, et al. deals with unsolicited faxes that a subsidiary of the McKesson Corp. sent to the chiropractic group.

While the Supreme Court has considered whether the Hobbs Act covers private litigation, it has not decided whether district courts must accept a specific agency order that interprets the TCPA. In most cases, courts have afforded deference to the FCC’s rulings.

In 2019, the FCC decided that “By this declaratory ruling, we make clear that an online fax service that effectively receives faxes ‘sent as email over the Internet’ and is not itself ‘equipment which has the capacity . . . to transcribe text or images (or both) from an electronic signal received over a regular telephone line onto paper’ is not a ‘telephone facsimile machine’” and thus falls outside the scope of the statutory prohibition.

In the McKesson case, the U.S. District Court for the Northern District of California ruled that the Hobbs Act does not allow a district court to review whether the FCC’s interpretation of the TCPA is wrong. The Ninth Circuit Court of Appeals affirmed the district court’s decision. The appeals court’s decision created a split among federal courts, since the Fourth Circuit had determined that district courts should decide how much deference to give to an FCC decision.

McLaughlin Associates said, as a result, the issue remains unsettled.

“As the district court in this case correctly recognized, whether the Hobbs Act requires federal courts to treat an agency’s legal interpretation of a federal statute as ‘invariably binding’ is a question that is in dire need of ‘critical guidance’ from a ‘higher court,’” McLaughlin Associates wrote in its petition to the Supreme Court.

McKesson disagreed, saying, among other things, that McLaughlin could not attack the FCC’s order, that the TCPA does not prohibit faxes sent to online fax service and that the FCC’s ruling deserves “respect.”