Mark Leyse v. Clear Channel Broadcasting, Inc
545 F. App'x 444
6th Cir.2013Background
- In 2005, Mark Leyse received a prerecorded promotional/contest call from a Clear Channel radio station and sued under the TCPA, 47 U.S.C. § 227(b)(1)(B), alleging prerecorded commercial-call prohibitions were violated.
- The FCC had previously, through notice-and-comment rulemaking (1992, 2003, 2005), adopted an exemption for certain prerecorded commercial calls that do not constitute an "unsolicited advertisement," including broadcaster invitations to tune in for a contest/prize.
- The district court dismissed Leyse’s complaint, finding the call fell within the FCC’s exemption and that the FCC’s rule was entitled to Chevron deference; Leyse appealed.
- Leyse argued on appeal (1) the call fell outside the exemption and (2) the FCC rule was procedurally defective (interpretive, not a logical outgrowth, lacked required findings, arbitrary and capricious), so no Chevron deference should apply.
- Clear Channel argued the Hobbs Act and the Communications Act vest exclusive, time-limited review of FCC orders in the courts of appeals, barring district-court consideration of collateral attacks on the FCC rule.
- The Sixth Circuit held the call fit the FCC exemption and affirmed dismissal; it also ruled the Hobbs Act bars district-court (and collateral) challenges to the procedural validity of the FCC rule, though district courts may decide whether a party’s conduct falls within an existing FCC rule’s scope.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Clear Channel call falls within the FCC’s TCPA exemption for certain prerecorded commercial calls | Leyse: the hybrid call promoted the station broadly and therefore is not covered by an exemption limited to simple broadcast invitations | Clear Channel: the call is a hybrid contest/broadcast invitation that the FCC explicitly exempted from §227(b)’s prerecorded-call ban | Held: Call fits the FCC exemption; it invites listening and promotes free broadcast content, so permitted under the rule |
| Whether the FCC’s exemption rule is entitled to Chevron deference | Leyse: rule is interpretive, not a binding legislative rule; not a logical outgrowth; procedurally defective and arbitrary | Clear Channel/FCC: Congress delegated authority to the FCC to prescribe exemptions; FCC used notice-and-comment rulemaking so Chevron applies | Held: Chevron (Mead/Chevron framework) applies—the statute delegated authority and FCC acted via notice-and-comment, so rule is binding unless procedurally defective (court finds rule valid) |
| Whether the Hobbs Act/FCC Act deprives the district court (and this court) of jurisdiction to consider collateral procedural challenges to the FCC rule | Leyse: Hobbs Act doesn’t apply because the FCC action is not an "order" with force of law or because suit is not a proceeding to enjoin an FCC order | Clear Channel: Hobbs Act bars collateral attacks; exclusive, time-limited review lies in courts of appeals | Held: Hobbs Act bars district-court (and appellate) jurisdiction over facial/procedural challenges to the FCC rule; such challenges must be pursued in the courts of appeals under the Hobbs Act |
| Whether Leyse could bring an as-applied or constitutional challenge in district court | Leyse: impliedly could challenge applicability to his situation | Clear Channel: as-applied and facial challenges differ; Hobbs Act restricts facial/procedural attacks | Held: District court retains jurisdiction to decide whether the particular call fits the FCC rule (an applicability/as-applied question), but not to adjudicate facial/procedural invalidity of the FCC’s exemption (those are for the courts of appeals) |
Key Cases Cited
- Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837 (Chevron two-step deference doctrine)
- United States v. Mead Corp., 533 U.S. 218 (administrative actions qualify for Chevron when Congress delegates rulemaking authority and agency acts with force of law)
- Columbia Broadcasting System, Inc. v. United States, 316 U.S. 407 (agency regulations promulgated lawfully may be treated as "orders" under Communications Act)
- FCC v. ITT World Commc’ns, Inc., 466 U.S. 463 (Hobbs Act grants exclusive review in courts of appeals; collateral suits in district court barred)
- CE Design, Ltd. v. Prism Bus. Media, Inc., 606 F.3d 443 (7th Cir.) (Hobbs Act precludes district-court consideration of validity of FCC rule when that rule likely will be asserted as a defense)
- United States v. Any and All Radio Station Transmission Equip. (Maquina Musical), 204 F.3d 658 (6th Cir. 2000) (distinguishes in rem forfeiture context from administrative-review preclusion)
- La Voz Radio De La Communidad v. FCC, 223 F.3d 313 (6th Cir.) (Hobbs Act precludes district-court collateral attacks on FCC administrative actions)
- United States v. Szoka, 260 F.3d 516 (6th Cir.) (district court lacked jurisdiction to adjudicate constitutional challenges to FCC cease-and-desist order; must pursue administrative review)