`(Slip Opinion)
`
`
`
` OCTOBER TERM, 2018
`
`
`Syllabus
`
`1
`
` NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
`
`
`
` being done in connection with this case, at the time the opinion is issued.
`
`
`
` The syllabus constitutes no part of the opinion of the Court but has been
`
` prepared by the Reporter of Decisions for the convenience of the reader.
`
` See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
`
`
`SUPREME COURT OF THE UNITED STATES
`
`
`
` Syllabus
`
`PDR NETWORK, LLC, ET AL. v. CARLTON & HARRIS
`CHIROPRACTIC, INC.
`
`CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
`
`THE FOURTH CIRCUIT
` No. 17–1705. Argued March 25, 2019—Decided June 20, 2019
`
`
`
` Petitioners (collectively PDR) produce the Physicians’ Desk Reference,
`which compiles information about the uses and side effects of various
`
`prescription drugs. PDR sent health care providers faxes stating that
`they could reserve a free copy of a new e-book version of the Refer-
`
` ence on PDR’s website. Respondent Carlton & Harris Chiropractic, a
`
` fax recipient, brought a putative class action in Federal District
`
` Court, claiming that PDR’s fax was an “unsolicited advertisement”
`prohibited by the Telephone Consumer Protection Act of 1991 (Tele-
` phone Act). 47 U. S. C. §227(b)(1)(C). The District Court dismissed
`
`
` the case, concluding that PDR’s fax was not an “unsolicited adver-
` tisement” under the Telephone Act. The Fourth Circuit vacated the
`
`District Court’s judgment. Based on the Administrative Orders Re-
`view Act (Hobbs Act), which provides that courts of appeals have “ex-
`clusive jurisdiction to enjoin, set aside, suspend (in whole or in part),
`
`or to determine the validity of” certain “final orders of the Federal
`
`Communication Commission,” 28 U. S. C. §2342(1), the Court of Ap-
`
`peals held that the District Court was required to adopt the interpre-
`
`tation of “unsolicited advertisement” set forth in a 2006 FCC Order.
`
`Because the Court of Appeals found that the 2006 Order interpreted
`
`the term “unsolicited advertisement” to “include any offer of a free
`good or service,” the Court of Appeals concluded that the facts as al-
`leged demonstrated that PDR’s fax was an unsolicited advertisement.
`
`883 F. 3d 459, 467.
`
`
`Held: The extent to which the 2006 FCC Order binds the lower courts
`may depend on the resolution of two preliminary sets of questions
`
`that were not aired before the Court of Appeals. First, is the Order
`
`the equivalent of a “legislative rule,” which is “ ‘issued by an agency
`
`
`
`
`
`

`

`2
`
`
`
`PDR NETWORK, LLC v.
`CARLTON & HARRIS CHIROPRACTIC, INC.
`
`Syllabus
`
`pursuant to statutory authority’ ” and has the “ ‘force and effect of
`
`
`law’ ”? Chrysler Corp. v. Brown, 441 U. S. 281, 302–303. Or is it the
`
`equivalent of an “interpretive rule,” which simply “ ‘advis[es] the pub-
`lic of the agency’s construction of the statutes and rules which it ad-
`
`
`
`ministers’ ” and lacks “ ‘the force and effect of law’ ”? Perez v. Mort-
`
`gage Bankers Assn., 575 U. S. 92, ___. If the Order is the equivalent
`of an “interpretive rule,” it may not be binding on a district court, and
`
`a district court therefore may not be required to adhere to it. Second,
`
`did PDR have a “prior” and “adequate” opportunity to seek judicial
`review of the Order? 5 U. S. C. §703. If the Hobbs Act’s exclusive-
`review provision, which requires certain challenges to FCC orders to
`be brought in a court of appeals “within 60 days after” the entry of
`
`the order in question, 28 U. S. C. §2344, did not afford PDR a “prior”
`
`and “adequate” opportunity for judicial review, it may be that the
`
`Administrative Procedure Act permits PDR to challenge the Order’s
`validity in this enforcement proceeding. The judgment of the Court
`
`
`
`of Appeals is vacated, and the case is remanded for that court to con-
`sider these preliminary issues, as well as any other related issues
`
`that may arise in the course of resolving this case. Pp. 4–6.
`883 F. 3d 459, vacated and remanded.
`BREYER, J., delivered the opinion of the Court, in which ROBERTS,
`
`
`C. J., and GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J.,
`
`
`
`
` filed an opinion concurring in the judgment, in which GORSUCH, J.,
`
`
`
`joined. KAVANAUGH, J., filed an opinion concurring in the judgment, in
`
` which THOMAS, ALITO, and GORSUCH, JJ., joined.
`
`
`
`
`
`
`
`

`

`
`
`Cite as:
`
`
`
`
`
` 588 U. S. ____ (2019)
`
`Opinion of the Court
`
`1
`
` NOTICE: This opinion is subject to formal revision before publication in the
`
`
`
`
` preliminary print of the United States Reports. Readers are requested to
`
` notify the Reporter of Decisions, Supreme Court of the United States, Wash-
`
` ington, D. C. 20543, of any typographical or other formal errors, in order
`
`
` that corrections may be made before the preliminary print goes to press.
`
`
`
`
`SUPREME COURT OF THE UNITED STATES
`
`_________________
`
` No. 17–1705
`_________________
`
` PDR NETWORK, LLC, ET AL., PETITIONERS v.
` CARLTON & HARRIS CHIROPRACTIC, INC.
`
`ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
`
`APPEALS FOR THE FOURTH CIRCUIT
`[June 20, 2019]
`JUSTICE BREYER delivered the opinion of the Court.
`This case concerns two federal statutes, the Telephone
`
`
`Consumer Protection Act of 1991 (Telephone Act) and the
`
`Administrative Orders Review Act (Hobbs Act). The first
`
`statute generally makes it unlawful for any person to send
` 47 U. S. C.
`an “unsolicited advertisement” by fax.
`
`§227(b)(1)(C). The second statute provides that the fed-
`
`eral courts of appeals have “exclusive jurisdiction to enjoin,
`
`set aside, suspend (in whole or in part), or to determine
`the validity of ” certain “final orders of the Federal Com-
`munication Commission.” 28 U. S. C. §2342(1).
`In 2006, the FCC issued an Order stating that the term
`
`
`“unsolicited advertisement” in the Telephone Act includes
`
`certain faxes that “promote goods or services even at no
`
`cost,” including “free magazine subscriptions” and “cata-
`logs.” 21 FCC Rcd. 3787, 3814. The question here is
`whether the Hobbs Act’s vesting of “exclusive jurisdiction”
`
`in the courts of appeals to “enjoin, set aside, suspend,” or
`
`“determine the validity” of FCC “final orders” means that
`a district court must adopt, and consequently follow, the
`FCC’s Order interpreting the term “unsolicited advertise-
`
`

`

`
`
`
`2
`
`
` PDR NETWORK, LLC v.
`
`CARLTON & HARRIS CHIROPRACTIC, INC.
`Opinion of the Court
`ment” as including certain faxes that promote “free” goods.
`
`
`We have found it difficult to answer this question, for
`the answer may depend upon the resolution of two prelim-
`inary issues. We therefore vacate the judgment of the
`Court of Appeals and remand this case so that the Court of
`Appeals can consider these preliminary issues.
`I
`Petitioners (PDR Network, PDR Distribution, and PDR
`
`Equity, collectively referred to here as PDR) produce the
`Physicians’ Desk Reference, a publication that compiles
`
`information about the uses and side effects of various
`prescription drugs. PDR makes money by charging phar-
`maceutical companies that wish to include their drugs in
`the Reference, and it distributes the Reference to health
`
`care providers for free. In 2013, PDR announced that it
`would publish a new e-book version of the Reference. It
`advertised the e-book to health care providers by sending
`faxes stating that providers could reserve a free copy on
`
`PDR’s website.
`One of the fax recipients was respondent Carlton &
`
`
`Harris Chiropractic, a health care practice in West Vir-
`ginia. It brought this putative class action against PDR in
`
`Federal District Court, claiming that PDR’s fax violated
`the Telephone Act. Carlton & Harris sought statutory
`
`damages on behalf of itself and other members of the
`
`class.
`According to Carlton & Harris, PDR’s fax was an “unso-
`
`licited advertisement” prohibited by the Telephone Act. 47
`U. S. C. §227(b)(1)(C). The Act defines “unsolicited adver-
`tisement” as “any material advertising the commercial
`availability or quality of any property, goods, or services
`
`which is transmitted to any person without that person’s
`prior express invitation or permission.” §227(a)(5). This
`
`provision says nothing about goods offered for free, but it
`does give the FCC authority to “prescribe regulations to
`
`
`

`

`
`
`Cite as:
`
`
`
`
`
` 588 U. S. ____ (2019)
`
`Opinion of the Court
`
`
` implement” the statute. §227(b)(2). And, as we have said,
`the FCC’s 2006 Order provides that fax messages that
` “promote goods or services even at no cost, such as
`
`free magazine subscriptions, catalogs, or free consul-
`tations or seminars, are unsolicited advertisements
`
`under the [Telephone Act’s] definition. . . . ‘[F]ree’
`publications are often part of an overall marketing
`campaign to sell property, goods, or services.” 21 FCC
`Rcd., at 3814.
`The Order also indicates, however, that faxes “that con-
`tain only information, such as industry news articles,
`legislative updates, or employee benefit information,
`
`would not be prohibited.” Ibid. The Order then sets forth
`
`“factors” the FCC “will consider” when determining
`whether “an informational communication” that contains
`
`advertising material is an “unsolicited advertisement.”
`Id., at 3814, n. 187.
`The District Court found in PDR’s favor and dismissed
`
`the case. It concluded that PDR’s fax was not an “unsolic-
`ited advertisement” under the Telephone Act. 2016 WL
`5799301 (SD W. Va., Sept. 30, 2016). The court did recog-
`nize that the FCC’s Order might be read to indicate the
`contrary. Id., at *3. And it also recognized that the Hobbs
`
`Act gives appellate courts, not district courts, “exclusive
`
`jurisdiction” to “determine the validity of ” certain FCC
`
`“final orders.” 28 U. S. C. §2342(1). Nonetheless, the
`District Court concluded that neither party had chal-
`lenged the Order’s validity. 2016 WL 5799301, *3. And it
`
`
`held that even if the Order is presumed valid, a district
`court is not bound to follow the FCC interpretation an-
`nounced in the Order. Id., at *4. In any event, the Dis-
`
`trict Court also noted that a “careful reading” of the Order
`
`
`showed that PDR’s fax was not an “unsolicited advertise-
`ment” even under the FCC’s interpretation of that term.
`
`Ibid.
`
`3
`
`
`
`
`
`

`

`4
`
`
` PDR NETWORK, LLC v.
`
`CARLTON & HARRIS CHIROPRACTIC, INC.
`Opinion of the Court
`Carlton & Harris appealed to the Fourth Circuit, which
`
`
`
` vacated the District Court’s judgment. 883 F. 3d 459
`
`(2018). The Court of Appeals held that “the jurisdictional
`command” of the Hobbs Act—that is, the word “exclu-
`sive”—“requires a district court to apply FCC interpreta-
`tions” of the Telephone Act. Id., at 466. Thus, the District
`
`Court should have adopted the interpretation of “unsolic-
`ited advertisement” set forth in the 2006 Order.
`Ibid.
`And because the Order interpreted the term “advertise-
`ment” to “include any offer of a free good or service,” id., at
`467, the facts as alleged demonstrated that PDR’s fax was
`an unsolicited advertisement.
`PDR filed a petition for certiorari. We granted certiorari
`
`
`
`to consider “[w]hether the Hobbs Act required the district
`
`court in this case to accept the FCC’s legal interpretation
`
`of the Telephone Consumer Protection Act.” 586 U. S. ___
`
`(2018).
`
`
`II
`
`
`The Hobbs Act says that an appropriate court of appeals
`has “exclusive jurisdiction to enjoin, set aside, suspend (in
`whole or in part), or to determine the validity of . . . final
`orders of the Federal Communication Commission made
`reviewable by section 402(a) of title 47.” 28 U. S. C.
`
`§2342(1); see 47 U. S. C. §402(a) (making reviewable
`certain “orde[rs] of the Commission under” the Communi-
`
`cations Act, of which the Telephone Act is part). It further
`
`provides that “[a]ny party aggrieved” may bring such a
`challenge in the court of appeals “within 60 days after” the
`
`entry of the FCC order in question. 28 U. S. C. §2344.
`
`
`Here, we are asked to decide whether the Hobbs Act’s
`commitment of “exclusive jurisdiction” to the courts of
`appeals requires a district court in a private enforcement
`suit like this one to follow the FCC’s 2006 Order interpret-
`ing the Telephone Act. The parties in this case did not
`dispute below that the Order is a “final order” that falls
`
`

`

`
`
`Cite as:
`
`
`
`5
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` 588 U. S. ____ (2019)
`
`Opinion of the Court
`
`
` within the scope of the Hobbs Act. 883 F. 3d, at 464, n. 1.
`
`And we assume without deciding that the Order is such a
`
` “final order.” Even so, the extent to which the Order binds
`
`the lower courts may depend on the resolution of two
`
` preliminary sets of questions that were not aired before
`the Court of Appeals.
`First, what is the legal nature of the 2006 FCC Order?
`
`In particular, is it the equivalent of a “legislative rule,”
`
`which is “‘issued by an agency pursuant to statutory
`authority’” and has the “‘force and effect of law’”? Chrys-
`
`ler Corp. v. Brown, 441 U. S. 281, 302–303 (1979) (quoting
`
`
`Batterton v. Francis, 432 U. S. 416, 425, n. 9 (1977)). Or is
`it instead the equivalent of an “interpretive rule,” which
`simply “‘advis[es] the public of the agency’s construction of
`
`the statutes and rules which it administers’” and lacks
`
`“‘the force and effect of law’”? Perez v. Mortgage Bankers
`
`Assn., 575 U. S. 92, ___ (2015) (slip op., at 3) (quoting
`Shalala v. Guernsey Memorial Hospital, 514 U. S. 87, 99
`(1995)).
`
`If the relevant portion of the 2006 Order is the equiva-
`
`lent of an “interpretive rule,” it may not be binding on a
`
`district court, and a district court therefore may not be
`
`required to adhere to it. That may be so regardless of
`whether a court of appeals could have “determin[ed]”
`
`during the 60-day review period that the Order is “vali[d]”
`and consequently could have decided not to “enjoin, set
`aside, [or] suspend” it. 28 U. S. C. §2342. And that may
`
`be so no matter what degree of weight the district court
`ultimately gives the FCC’s interpretation of the statute
`under Chevron U. S. A. Inc. v. Natural Resources Defense
`
`
`
`Council, Inc., 467 U. S. 837 (1984). We say “may” because
`we do not definitively resolve these issues here.
`
`Second, and in any event, did PDR have a “prior” and
`“adequate” opportunity to seek judicial review of the Or-
`der? 5 U. S. C. §703. The Administrative Procedure Act
`provides that “agency action is subject to judicial review in
`
`

`

`6
`
`
` PDR NETWORK, LLC v.
`
`CARLTON & HARRIS CHIROPRACTIC, INC.
`Opinion of the Court
`civil or criminal proceedings for judicial enforcement”
`
`
` except “to the extent that [a] prior, adequate, and exclusive
`
` opportunity for judicial review is provided by law.” Ibid.
`(emphasis added). We believe it important to determine
`whether the Hobbs Act’s exclusive-review provision, which
`requires certain challenges to FCC final orders to be
`
`brought in a court of appeals “within 60 days after” the
`
`entry of the order in question, 28 U. S. C. §2344, afforded
`
`PDR a “prior” and “adequate” opportunity for judicial
`
`review of the Order. If the answer is “no,” it may be that
`
`the Administrative Procedure Act permits PDR to chal-
`lenge the validity of the Order in this enforcement pro-
` ceeding even if the Order is deemed a “legislative” rule
`
`rather than an “interpretive” rule. We again say “may”
`because we do not definitively decide this issue here.
`
`III
`
`As we have said many times before, we are a court of
`
`
`“review,” not of “first view.” Cutter v. Wilkinson, 544 U. S.
`
`
`709, 718, n. 7 (2005). Because the Court of Appeals has
`
`not yet addressed the preliminary issues we have de-
`
`scribed, we vacate the judgment of the Court of Appeals
`
`and remand this case so that the Court of Appeals may
`consider these preliminary issues, as well as any other
`related issues that may arise in the course of resolving
`this case.
`
`
`It is so ordered.
`
`

`

`
`
` Cite as: 588 U. S. ____ (2019)
`
` THOMAS, J., concurring in judgment
`
`
`SUPREME COURT OF THE UNITED STATES
`
`1
`
`
`
`_________________
`No. 17–1705
`
`_________________
`
` PDR NETWORK, LLC, ET AL., PETITIONERS v.
` CARLTON & HARRIS CHIROPRACTIC, INC.
`
`ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
`
`APPEALS FOR THE FOURTH CIRCUIT
`[June 20, 2019]
`JUSTICE THOMAS, with whom JUSTICE GORSUCH joins,
`concurring in the judgment.
`
` For the reasons explained by JUSTICE KAVANAUGH, the
`
`
`Court of Appeals misinterpreted the Hobbs Act. I write
`
`separately to address a more fundamental problem with
`that court’s holding: It rests on a mistaken—and possibly
`unconstitutional—understanding of the relationship be-
`
`tween federal statutes and the agency orders interpreting
`them.
`
`
`The opinion below assumes that an executive agency’s
`
`interpretation of a statute it administers serves as an
`authoritative gloss on the statutory text unless timely
`
`challenged. But for that assumption, the Hobbs Act would
`have no role to play in this case. This suit is a dispute
`between private parties, and petitioners did not ask the
`District Court to “enjoin, set aside, suspend,” or “deter-
`mine the validity of ” any order of the Federal Communi-
`cations Commission (FCC). 28 U. S. C. §2342(1). Indeed,
`they did not even initiate this suit. They simply argued
`that the fax at issue here was not an “unsolicited adver-
`
`
`tisement” and thus did not violate the Telephone Consumer
`
`Protection Act of 1991 (TCPA), as respondent contended.
`See 47 U. S. C. §§227(a)(5), (b)(1)(C). The District Court
`agreed, but the Fourth Circuit reversed, explaining that
`
`the FCC had adopted an order interpreting the term
`
`
`
`

`

`
`
`2
`
`
`
`PDR NETWORK, LLC v.
`CARLTON & HARRIS CHIROPRACTIC, INC.
` THOMAS, J., concurring in judgment
`
`
`“unsolicited advertisement” and that, under the Hobbs
`Act, only the Courts of Appeals had jurisdiction to “deter-
`mine the validity of ” such orders. §2342; see 883 F. 3d
`459, 464 (2018). According to the decision below, the
`
`Hobbs Act “precluded the district court from even reach-
`
`ing” the question of the TCPA’s meaning because “a dis-
`trict court simply cannot reach [that] question without
`‘rubbing up against the Hobbs Act’s jurisdictional bar.’”
`Ibid. (emphasis added).
`
` As JUSTICE KAVANAUGH explains, the Fourth Circuit
`
`
`was incorrect. Interpreting a statute does not “determine
`the validity” of an agency order interpreting or implement-
`
`ing the statute. See post, at 11–13 (opinion concurring in
`judgment).*
`
`A contrary view would arguably render the Hobbs Act
`unconstitutional. If the Act truly “precluded the district
`court from even reaching” the text of the TCPA and in-
`stead required courts to treat “FCC interpretations of the
`TCPA” as authoritative, 883 F. 3d, at 464, then the Act
`would trench upon Article III’s vesting of the “judicial
`Power” in the courts. As I have explained elsewhere, “the
`judicial power, as originally understood, requires a court
`
`to exercise its independent judgment in interpreting and
`expounding upon the laws.” Perez v. Mortgage Bankers
`
`Assn., 575 U. S. 92, ___ (2015) (opinion concurring in
`judgment) (slip op., at 8). That duty necessarily entails
`
`identifying and applying the governing law. Insofar as the
`
`Hobbs Act purports to prevent courts from applying the
`governing statute to a case or controversy within its juris-
`diction, the Act conflicts with the “province and duty of the
`——————
`
`*Contrary to the majority’s suggestion, ante, at 5, it therefore makes
`no difference whether the FCC order at issue here is a legislative rule
`or an interpretive rule. In any event, the order is clearly interpretive—
`it was “ ‘issued by an agency to advise the public of the agency’s con-
`
`
`struction of’ ” the term “unsolicited advertisement.” Perez v. Mortgage
`
`
`Bankers Assn., 575 U. S. 92, ___ (2015) (slip op., at 3).
`
`
`
`

`

`3
`
`
`
` Cite as: 588 U. S. ____ (2019)
`
`
` THOMAS, J., concurring in judgment
`
` judicial department to say what the law is.” Marbury v.
`
`
`
` Madison, 1 Cranch 137, 177 (1803). And to the extent the
`
` Hobbs Act requires courts to “give the ‘force of law’ to
`
`agency pronouncements on matters of private conduct”
`without regard to the text of the governing statute, the Act
`
`would be unconstitutional for the additional reason that it
`would “permit a body other than Congress” to exercise the
`legislative power, in violation of Article I. Michigan v.
`EPA, 576 U. S. ___, ___ (2015) (THOMAS, J., concurring)
`(slip op., at 3). At a minimum, our constitutional-
`avoidance precedents would militate against the Fourth
`Circuit’s view of the Hobbs Act.
`
`*
`*
`*
`
`The decision below rested on the assumption that Con-
`gress can constitutionally require federal courts to treat
`
`agency orders as controlling law, without regard to the
`text of the governing statute. A similar assumption un-
`derlies our precedents requiring judicial deference to
`
`
`certain agency interpretations. See Chevron U. S. A. Inc.
`
`v. Natural Resources Defense Council, Inc., 467 U. S. 837
`(1984). This case proves the error of that assumption and
`emphasizes the need to reconsider it.
`
`
`
`
`
`

`

`
`
`1
`
`
`
` Cite as: 588 U. S. ____ (2019)
`
`KAVANAUGH, J., dissenting
` KAVANAUGH, J., concurring in judgment
`
`
`
`SUPREME COURT OF THE UNITED STATES
`
`_________________
`
` No. 17–1705
`_________________
`
` PDR NETWORK, LLC, ET AL., PETITIONERS v.
` CARLTON & HARRIS CHIROPRACTIC, INC.
`
`ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
`
`APPEALS FOR THE FOURTH CIRCUIT
`[June 20, 2019]
`JUSTICE KAVANAUGH, with whom JUSTICE THOMAS,
`
`
`JUSTICE ALITO, and JUSTICE GORSUCH join, concurring in
`
`
`
`the judgment.
`May defendants in civil enforcement actions under the
`
`
`Telephone Consumer Protection Act contest the Federal
`Communications Commission’s interpretation of the Act?
`
`The Fourth Circuit concluded that the answer is no, mean-
`ing that a district court in an enforcement action is re-
`quired to adhere to the FCC’s interpretation of the Act, no
`matter how wrong the FCC’s interpretation might be. I
`
`disagree with the Fourth Circuit.
`
`The Telephone Consumer Protection Act, or TCPA,
`
`
`prohibits unsolicited commercial faxes. The TCPA creates
`a private right of action so that the recipients of unsolicited
`
`
`
`commercial faxes can sue the senders.
`Plaintiff Carlton sued PDR in Federal District Court,
`
`
`claiming that PDR sent an unsolicited commercial fax to
`
`Carlton in violation of the TCPA. In pursuing its TCPA
`claim, Carlton relied on the FCC’s interpretation of the
`TCPA. In 2006, the FCC had opined that the TCPA pro-
`scribes unsolicited faxes that promote goods and services,
`even at no cost. In this litigation, PDR argued that the
`FCC’s “even at no cost” interpretation is wrong (at least if
`taken literally) and that the District Court therefore
`
`should not follow the FCC’s interpretation when interpret-
`
`

`

`2
`
`
` PDR NETWORK, LLC v.
`
`CARLTON & HARRIS CHIROPRACTIC, INC.
` KAVANAUGH, J., concurring in judgment
`
`
`ing the TCPA.
`
`The Hobbs Act provides for facial, pre-enforcement
`
`review of FCC orders. To obtain such review, a party
`must file a petition for review in a court of appeals within
`
`60 days of the entry of the order, a period that expired
`
`back in 2006 for this FCC order. In Carlton’s view, which
`is supported here by the Federal Government, the Hobbs
`Act’s provision for facial, pre-enforcement review implic-
`itly bars district courts from reviewing agency interpreta-
`
`tions in subsequent enforcement actions. According to
`
`Carlton, PDR therefore may not argue in this enforcement
`
`action that the FCC’s interpretation of the TCPA is incor-
`
`rect. The Fourth Circuit agreed with Carlton.
`
`
`We granted certiorari to decide whether the Hobbs Act
`
`required the District Court in this case to accept the FCC’s
`
`legal interpretation of the TCPA.
`
`Ruling narrowly, the Court does not answer the ques-
`tion presented. The Court instead vacates the judgment of
`the Fourth Circuit and remands the case for analysis of
`two “preliminary issues,” which, depending on how they
`are resolved, could eliminate the need for an answer in
`
`this case to the broader question we granted certiorari to
`
`decide. Ante, at 6. Under the Court’s holding, if the court
`on remand concludes that the FCC’s order was an inter-
`pretive rule (as opposed to a legislative rule) and not
`
`subject to the Hobbs Act in the first place, then PDR will
`be able to argue to the District Court that the FCC’s inter-
`pretation of the TCPA is wrong. Or if the court on remand
`concludes that the opportunity back in 2006 for pre-
`enforcement review in a court of appeals was not “ade-
`quate” for PDR to obtain judicial review, then PDR like-
`wise will be able to argue to the District Court that the
`
`FCC’s interpretation of the TCPA is wrong.
`
`
`If the court on remand does not reach either of those two
`
`conclusions, however, then that court will have to tackle
`the question that we granted certiorari to decide. I agree
`
`

`

`
`
`3
`
`
`
`
`
`
`
` Cite as: 588 U. S. ____ (2019)
`
` KAVANAUGH, J., concurring in judgment
`
`
`with the Court that we should vacate the judgment of the
`
`Fourth Circuit, but I would decide the question that we
`
`granted certiorari to decide. I would conclude that the
`Hobbs Act does not bar a defendant in an enforcement
`
`action from arguing that the agency’s interpretation of the
`statute is wrong.
`
`
`My analysis of that question is straightforward: The
`general rule of administrative law is that in an enforce-
`ment action, a defendant may argue that an agency’s
`interpretation of a statute is wrong, at least unless Con-
`gress has expressly precluded the defendant from advanc-
`ing such an argument. The Hobbs Act does not expressly
`preclude judicial review of an agency’s statutory interpre-
`tation in an enforcement action. Therefore, in this en-
`
`forcement action, PDR may argue to the District Court
`
`that the FCC’s interpretation of the TCPA is wrong. The
`
`District Court is not bound by the FCC’s interpretation
`
`of the TCPA. Rather, the District Court should interpret
`the TCPA under usual principles of statutory inter-
`pretation, affording appropriate respect to the agency’s
`interpretation.
`
`The analysis set forth in this separate opinion remains
`available to the court on remand (if it needs to reach the
`question after answering the preliminary issues identified
`by this Court), and it remains available to other courts in
`the future.
`
`
`
`
`
`
`I
`
`
`Passed by Congress and signed by President Truman in
`1950, the Hobbs Act provides in relevant part: “The court
`of appeals . . . has exclusive jurisdiction to enjoin, set
`aside, suspend (in whole or in part), or to determine the
`
`validity of . . . all final orders of the Federal Communica-
`
`tion Commission made reviewable by section 402(a) of title
`47.” 28 U. S. C. §2342. Under the Hobbs Act, when the
`
`FCC issues certain regulations, any “party aggrieved” has
`
`

`

`4
`
`
`
`
`
`PDR NETWORK, LLC v.
`CARLTON & HARRIS CHIROPRACTIC, INC.
` KAVANAUGH, J., concurring in judgment
`
`
`60 days to “file a petition to review the order in the court
`
`of appeals.” §2344. If more than one petition for review is
`
` filed, the petitions are consolidated in a single court of
`
`
` appeals. §2112(a)(3).1
`The point of the Hobbs Act is to force parties who want
`
`
`to challenge agency orders via facial, pre-enforcement
`
`challenges to do so promptly and to do so in a court of
`
`appeals. The pre-enforcement review process established
`by the Act avoids the delays and uncertainty that other-
`wise would result from multiple pre-enforcement proceed-
`ings being filed and decided over time in multiple district
`courts and courts of appeals.
`If no one files a facial, pre-enforcement challenge to an
`
`
`
`agency order, or if a court of appeals upholds the agency’s
`interpretation, then a party who later wants to engage in
`
`proscribed activity and disagrees with the agency’s inter-
`pretation faces a difficult decision. The party must take
`
`the risk of engaging in the activity and then arguing
`
`against the agency’s legal interpretation as a defendant in
`an enforcement action. The question for us is whether the
`
`Hobbs Act bars defendants in those enforcement actions
`
`from arguing that the agency incorrectly interpreted the
`
`statute. The answer is that the Act does not bar defend-
`ants from raising such an argument.
`Two categories of statutes allow
`
`enforcement review of agency orders.
`Statutes in the first category authorize facial, pre-
`
`enforcement judicial review and expressly preclude judi-
`cial review in subsequent enforcement actions. The Clean
`Water Act, the Comprehensive Environmental Response,
`Compensation, and Liability Act of 1980 (CERCLA), and
`——————
`1The exclusive-jurisdiction provision of the Hobbs Act also governs
`
`review of certain actions of the Department of Agriculture, Department
`
`of Transportation, Federal Maritime Commission, Nuclear Regulatory
`Commission, Surface Transportation Board, and Department of Hous-
`ing and Urban Development. See 42 U. S. C. §§2342(2)–(7).
`
`facial, pre-
`
`for
`
`

`

`
`
`5
`
`
`
` Cite as: 588 U. S. ____ (2019)
`
` KAVANAUGH, J., concurring in judgment
`
`
`the Clean Air Act are examples. The Clean Water Act
`provides for facial, pre-enforcement review of certain
`
`agency actions in a court of appeals and requires parties to
`
`
`seek review within 120 days. See 33 U. S. C. §1369(b)(1).
`The Act expressly states that those agency orders “shall
`not be subject to judicial review in any civil or criminal
`proceeding for enforcement.” §1369(b)(2). CERCLA pro-
`vides for parties to seek pre-enforcement review of any
`covered regulation in the D. C. Circuit within 90 days. See
`42 U. S. C. §9613(a). Like the Clean Water Act, CERCLA
`
`expressly states that those agency orders “shall not be
`subject to judicial review in any civil or criminal proceed-
`
`ing for enforcement.” Ibid. Similarly, the Clean Air Act
`provides for parties to file pre-enforcement petitions for
`
`review in the D. C. Circuit within 60 days. See 42 U. S. C.
`§7607(b)(1). The Clean Air Act, too, expressly states that
`those agency orders “shall not be subject to judicial re-
`
`view in civil or criminal proceedings for enforcement.”
`§7607(b)(2).
`
`Statutes in the second category authorize facial, pre-
`
`enforcement judicial review, but are silent on the question
`
`whether a party may argue against the agency’s legal
`
`interpretation in subsequent enforcement proceedings.
`The Hobbs Act is an example, as are statutes that provide
`
`for review of certain Securities and Exchange Commission
`(SEC) and Department of Labor orders and rules. See 15
`U. S. C. §§78y(a)(1), (3), (b)(1), (3); 29 U. S. C. §655(f).
`
`For that second category—the statutes that are silent
`about review in subsequent enforcement actions—there
`must be a default rule that applies absent statutory lan-
`guage to the contrary. The question is whether the proper
`
`
`default rule is (1) to preclude review by the district court
`of whether the agency interpretation is correct or (2) to
`
`allow review by the district court of whether the agency
`interpretation is correct. In my view, elementary princi-
`ples of administrative law establish that the proper de-
`
`

`

`6
`
`
` PDR NETWORK, LLC v.
`
`CARLTON & HARRIS CHIROPRACTIC, INC.
` KAVANAUGH, J., concurring in judgment
`
`
` fault rule is to allow review by the district court of whether
`
`
`
`the agency interpretation is correct. In those enforce-
`ment actions, the defendant may argue that the agency’s
`
`interpretation is wrong. And the district courts are not
`
`bound by the agency’s interpretation. District courts must
`
`determine the meaning of the statute under the usual
`principles of statutory interpretation, affording appropri-
`ate respect to the agency’s interpretation.
`To begin with, the “Administrative Procedure Act cre-
`
`ates a basic presumption of judicial review for one suffer-
`ing legal wrong because of agency action.” Weyerhaeuser
`
`Co. v. United States Fish and Wildlife Serv., 586 U. S. ___,
`___ (2018) (slip op., at 11) (quotation altered). Unless
`
`“there is persuasive reason to believe” that Congress
`intended to preclude judicial review, the Court will not
`preclude review. Bowen v. Michigan Academy of Family
`
`Physicians, 476 U. S. 667, 670 (1986) (internal quotation
`marks omitted).
`
`
`Consistent with that strong presumption of judicial
`review, a party traditionally has been able to raise an as-
`applied challe