This is a junk fax case, and like most such cases, the facts are not especially juicy. In 2004 Prism Business Media, Inc., sent CE Design, Limited, a fax advertising a trade show. 1 That’s it. But that small act sparked a lawsuit that presents some interesting jurisdictional and regulatory questions. CE Design sued Prism under the Telephone Consumer Protection Act (TCPA), which prohibits the use of fax machines to send unsolicited advertisements. See 47 U.S.C. § 227(b)(1)(C). Prism sought summary judgment on the *445 ground that it shared with CE Design an “established business relationship” (EBR) — a status which, Prism argued, provided a complete defense under the Federal Communications Commission’s (FCC) orders implementing the TCPA. In response, CE Design asked the district court to ignore the FCC orders because, according to it, Congress did not authorize the FCC to establish an EBR defense. Because CE Design’s request sounded a lot like one “to enjoin, set aside, suspend (in whole or in part), or to determine the validity” of a final FCC order — tasks which the Administrative Orders Review Act places within the exclusive jurisdiction of the courts of appeals, see 28 U.S.C. § 2342(1); 47 U.S.C. § 402(a) — the district court concluded that it lacked jurisdiction to consider the validity of the EBR defense. After determining that the relationship between Prism and CE Design met the FCC’s definition of an EBR, the court granted Prism’s motion for summary judgment. CE Design appeals.
The few facts in this case are undisputed. Prism describes itself as a “business-to-business media company” that publishes trade magazines and sponsors industry-specific trade shows. CE Design, a civil engineering and design firm, is among the more than five million subscribers to Prism’s publications. Between 1998 and 2008 CE Design subscribed to three of Prism’s publications. For each subscription, CE Design’s president and sole shareholder, John Pezl, filled out Prism’s subscription card. On at least two of the subscription cards, Pezl provided CE Design’s fax number among the required contact information.
On August 23, 2004, Prism sent CE Design the fax that set this lawsuit in motion. Prism sent the fax to Pezl’s attention at the fax number he provided in his subscription requests. The fax advertised an upcoming trade show. It included a notice inviting Pezl to write “remove” on the face of the advertisement and fax it back to a toll-free number if he believed he received the fax in error or if he wished to unsubscribe. Instead of accepting that invitation, CE Design filed this putative class-action lawsuit. 2
In its complaint, CE Design alleged that Prism violated the TCPA provision prohibiting the use of “any telephone facsimile machine ... to send an unsolicited advertisement to a telephone facsimile machine.” 47 U.S.C. § 227(b)(1)(C). In 2005 — after Prism sent the fax but before CE Design filed this suit — Congress passed the Junk Fax Protection Act (JFPA), which amended the TCPA to exempt from the ban on unsolicited fax advertisements any faxes sent “from a sender with an established business relationship with the recipient.” 47 U.S.C. § 227(b)( 1)(C)(i). But the preJFPA version of the TCPA applies in this case, and the EBR exemption does not appear in that version of the statute. Instead, before 2005 the EBR exemption appeared only in FCC reports and orders implementing the TCPA.
See, e.g., In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991
(1992 Report and Order), 7 F.C.C.R. 8752, 8779 n. 87,
*446
In its summary judgment motion, Prism argued that the FCC’s 1992 Report and Order provides a complete defense to CE Design’s TCPA claim. Prism argued that CE Design’s status as a subscriber to Prism’s publications meant that they had an EBR at the time Prism faxed the advertisement, and accordingly, the fax it sent CE Design should be deemed invited. In response, CE Design argued that the district court should ignore the 1992 Report and Order, as well as subsequent FCC orders demonstrating that before Congress passed the JFPA, the FCC considered the EBR exemption to apply to faxed advertisements.
See, e.g., In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991,
10 F.C.C.R. 12391, 12408 (Aug. 7, 1995);
In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991
(2003 Report & Order), 18 F.C.C.R. 14014, 14127,
In its thorough and thoughtful opinion granting Prism summary judgment, the district court concluded that it lacked jurisdiction to consider CE Design’s argument that the FCC was not authorized to establish an EBR defense. Specifically, it noted that the Administrative Orders Review Act, better known as the Hobbs Act, reserves to the courts of appeals the power “to enjoin, set aside, suspend (in whole or in part), or to determine the validity of’ all final FCC orders, see 28 U.S.C. § 2342(1); 47 U.S.C. § 402(a), and that before seeking relief from an appellate court, a party aggrieved by the FCC’s final order must petition the FCC for reconsideration, see 47 U.S.C. § 405(a). The district court observed that CE Design’s characterization of the EBR exemption as “unauthorized” amounted to an indirect challenge to the FCC’s rule, and accordingly, it concluded that it lacked jurisdiction to consider the validity of the EBR exemption. Instead, the district court considered only whether the EBR exemption applies to the facts of this case. 3 After carefully considering the FCC’s EBR definition, the district court determined that at the time Prism faxed CE Design its advertisement, the parties had an EBR. Accordingly, the fax was deemed to have been invited, and Prism was entitled to summary judgment on CE Design’s TCPA claim.
We review the district court’s grant of summary judgment de novo.
See Covell v. Menkis,
In challenging the district court’s jurisdictional analysis, CE Design argues that under the familiar analytical framework established in
Chevron U.S.A, Inc. v. Natural Resources Defense Council, Inc.,
CE Design’s argument presents something of a chicken-and-an egg question: What comes first, the Hobbs Act’s jurisdictional restrictions or step one of
Chevron?
But while one can go around and around on the chicken-and-the-egg dilemma, an Article III court’s obligation to ensure its jurisdiction to resolve a controversy precedes any analysis of the merits.
See Davis v. Fed. Election Comm’n,
— U.S. -,
CE Design argues that asking a district court to “ignore” the EBR defense at step one of its
Chevron
analysis is not the same as asking the court to invalidate the rule. We just don’t see the difference in this fine distinction. When Prism raised the EBR exemption as a defense to CE Design’s TCPA claim, it inherently called upon the district court to enforce the FCC’s rule. CE Design’s request that the court “ignore” the rule is just another way of asking it
not
to enforce the rule. That CE Design’s challenge to the FCC’s EBR defense arises in a dispute between private parties makes no difference — the Hobbs Act’s jurisdictional limitations are “equally applicable whether [a party] wants to challenge the rule directly ... or indirectly, by suing someone who can be expected to set up the rule as a defense in the suit.”
City of Peoria v. Gen. Elec. Cablevision Corp. (GECCO),
CE Design’s attempt to show that there is a difference between asking the court to ignore a regulation at
Chevron’s
step one and asking it to set aside or invalidate a regulation cannot be squared with its repeated characterization of the FCC’s decision to establish the EBR defense as being unauthorized or “ultra vires.” CE Design describes the legislative history of the EBR defense and argues that Congress rejected it intentionally and never gave the FCC the authority to resurrect it. But as the Supreme Court has made clear, a litigant can’t avoid the Hobbs Act’s jurisdictional bar simply by accusing an agency of acting outside its authority.
See ITT World Commc’ns, Inc.,
None of the cases on which CE Design relies in challenging the district court’s jurisdictional analysis demonstrate that a district court may proceed through step one of the
Chevron
analysis without rubbing up against the Hobbs Act’s jurisdictional bar. Some of the cases to which CE Design points involve state-agency decisions or rules that are not even subject to the Hobbs Act’s jurisdictional bar and therefore have nothing to say about the Hobbs Act’s interplay with
Chevron. See, e.g., Cler v. Ill. Educ. Ass’n,
The few remaining cases to which CE Design points do not even mention the Hobbs Act’s jurisdictional bar, let alone describe its interplay with
Chevron.
CE Design points with particular urgency to
Global Crossing Telecommunications, Inc. v. Metrophanes Telecommunications,
In a final effort to discredit the district court’s jurisdictional analysis, CE Design warns us that the consequences of adhering to the Hobbs Act here would be “an affront to the Constitution” and would allow agency interpretation to trump congressional intent in a way that violates separation-of-powers principles. Specifically, it argues that the district court’s jurisdictional analysis renders the Hobbs Act unconstitutional by preventing “the court from reading and applying the plain language” of the TCPA. But that is pure bluster (dressed up in CE Design’s rather hyperbolic analogies to nuclear missiles and the Cold War). In passing the Hobbs Act, Congress vested the power of agency review of final FCC orders exclusively in the courts of appeals. 28 U.S.C. § 2342(1). The Hobbs Act’s jurisdictional bar thus does not leave private parties without a mechanism for judicial review of agency action; it merely requires litigants to seek review through its specific procedural path.
See GECCO,
Having concluded that the district court correctly determined that it lacked jurisdiction to consider whether to enforce the EBR defense in the present case, we turn to CE Design’s argument that its subscriber relationship with Prism does not fall within the FCC’s definition of an EBR. Specifically, it points to a subpart of the FCC’s 1992 Report and Order stating that “as used in this section ... [t]he term ‘established business relationship’ means a prior or existing relationship formed by a voluntary two-way communication between a person or entity and a residential subscriber.” See 7 F.C.C.R. at 8792-93. Based on that definition’s inclusion of the term “residential subscriber,” CE Design argues that an EBR exists only where the fax recipient is a private individual or a business run from a residence. Because CE Design describes itself as a business subscriber, it concludes that “it did not *451 have an EBR with Prism or any other broadcaster.”
We agree with the district court’s conclusion that CE Design’s reading of the FCC’s pre-JFPA definition of EBR is far too narrow. The definition' on which CE Design bets its hand is located in the implementing regulations appended to the 1992 Report and Order — specifically, under the heading “Subpart L — Restrictions on Telephone Solicitation.” 7 F.C.C.R. at 8790. Subpart L addresses the TCPA’s limitations on automated calls to residences and makes no mention of unsolicited faxes. In that limited context, it makes sense that the FCC restricted the EBR definition to residential subscribers — Sub-part L is geared toward preventing people from being bombarded at home with annoying automated phone calls. In the section specific to faxed advertisements, the FCC states that unsolicited faxed ads “can be deemed to be invited or permitted by the recipient,” but does not in any way limit the term “recipient,” or otherwise indicate that the EBR defense is limited to residential subscribers. 7 F.C.C.R. at 8779 n. 87. More importantly, the whole of the 1992 Report and Order demonstrates that the FCC did not intend the limited reading of the EBR defense that CE Design ascribes to it here. For example, elsewhere in the 1992 Report and Order the FCC explains that the term “business relationship” should be construed broadly and that an EBR is “a prior or existing relationship formed by a voluntary two-way communication between the caller and the called party, which relationship has not been previously terminated by either party.” Id. at 8771. In describing the types of relationships that are encompassed by an EBR, the FCC specifically cited “publishers with subscribers” as an example. Id. Accordingly, it would be hard not to conclude that the FCC intended for relationships like that between Prism and CE Design — a publisher and its subscriber — to fall within the scope of the EBR exception.
In various orders issued following the promulgation of the 1992 rules, the FCC continued to emphasize a broad reading of the relationships covered by the EBR defense. In 2001 the FCC issued a public notice reminding consumers about the TCPA’s junk fax prohibition. In that notice, the FCC explained that the prohibition on unsolicited faxes “applies to unsolicited advertisements transmitted to both businesses and residences.... An established business relationship, however, demonstrates consent to receive fax advertisement transmissions.” 16 F.C.C.R. 4524 (Feb. 20, 2001). In the 2003 Report and Order, the FCC explained that the EBR exemption was “sufficient to show that an individual or business has given their express permission to receive unsolicited facsimile advertisements.” 6 18 F.C.C.R. at 14127. Given the FCC’s broad reading of the EBR definition, we agree with the district court that the FCC did not intend to limit the EBR exemption to only residential subscribers who receive unsolicited faxes. And because Prism and CE Design’s publisher-subscriber relationship falls within the scope of business relationships the FCC intended the EBR defense to cover, we also agree that the EBR exemption applies in this case.
The judgment of the district court is Affirmed.
Notes
. Before this suit was filed, Prism Business Media, Inc., changed its name to Penton Business Media, Inc., but the parties and the district court have referred to the defendant as Prism throughout this litigation. For consistency’s sake, we will do the same.
. We think it’s worth noting that CE Design is no stranger to junk fax litigation; it has filed more than 100 similar suits under the TCPA.
. Although the Hobbs Act prevents the district court from considering the validity of final FCC orders, the court retains jurisdiction to determine whether the parties' actions violate FCC rules.
See, e.g., U.S. West Common’s, Inc. v. Jennings,
. On appeal CE Design has not argued that the 1992 Report and Order setting forth the EBR defense is anything other than a final FCC order.
. CE Design suggests in a footnote in its opening brief that we have jurisdiction under the Hobbs Act to invalidate the FCC’s EBR exemption. But of course, CE Design "cannot use an appeal from a district court to circumvent the Hobbs Act's requirement that a challenge to an FCC order is subject only to
direct
review in a court of appeals.”
See GTE S., Inc.,
. In the 2003 Report and Order, the FCC reversed its stance and said that as of the effective date of the new rules it was implementing, an EBR would no longer provide a defense. But those rales never took effect before Congress passed the JFPA, and in the interim the FCC continued to recognize the EBR exemption.