Michael Nack v. Douglas Walburg
715 F.3d 680
| 8th Cir. | 2013Background
- Nack received a single fax ad after consenting to receive faxes; no opt-out language was present.
- Nack sues Walburg under TCPA/JFPA claiming the opt-out requirement applies despite consent.
- District court held 47 C.F.R. § 64.1200(a)(3)(iv) did not apply to solicited/consented-to faxes.
- The panel requested FCC input; FCC advised opt-out language is required even with prior express permission.
- Court reverses summary judgment, declines to address agency-initiated challenges under Hobbs Act, and remands for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does § 64.1200(a)(3)(iv) apply to solicited faxes? | Nack argues regulation applies to solicited faxes requiring an opt-out. | Walburg argues regulation cannot extend to solicited faxes or be valid as applied. | Regulation applies per FCC interpretation; opt-out required even with consent. |
| Is the regulation's validity reviewable outside the Hobbs Act process? | Nack seeks direct judicial invalidity of the regulation. | Walburg contends Hobbs Act limits challenges to FCC orders; must go through agency proceedings. | Hobbs Act precludes direct invalidity challenges; review must follow agency process. |
| Does the private right of action extend to regulations promulgated under § 227(b)? | Nack asserts private right to enforce the regulation as promulgated. | Walburg argues private action may not reach a regulation not promulgated under § 227(b). | Arguments treated as impermissible challenges; regulation falls within the scope if properly promulgated. |
| Is a constitutional challenge to the regulation ripe or properly before the court? | Nack did not raise constitutional challenge below. | Walburg contends possible constitutional issues may apply if interpreted as extending authority. | Not properly before the court at this stage; not addressed on appeal. |
| What is the proper procedural posture on remand? | Nack seeks continued litigation subject to FCC interpretation. | Walburg seeks opportunity to pursue administrative determination before resuming actions. | Remand allowed for potential stay to pursue administrative determination. |
Key Cases Cited
- CE Design, Ltd. v. Prism Bus. Media, Inc., 606 F.3d 443 (7th Cir. 2010) (Hobbs Act review and agency deference framework)
- United States v. J & K Market Centerville, LLC, 679 F.3d 709 (8th Cir. 2012) (deference to an agency's interpretation of its regulations)
- FCC v. ITT World Communications, Inc., 466 U.S. 463 (1984) (exclusive jurisdiction for challenges to FCC orders under Hobbs Act)
- City of Peoria v. Gen. Elec. Cablevision Corp (GECCO), 690 F.2d 116 (8th Cir. 1982) (Hobbs Act review and agency-review paradigm)
- Florida Power & Light Co. v. Lorion, 470 U.S. 729 (1985) (reluctance to review agency decisions absent extraordinary circumstances)
- American Blast Fax, Inc. v. Nixon, 323 F.3d 649 (8th Cir. 2003) (commercial-speech considerations in TCPA context)