The US Supreme Court’s recent ruling scaling back deference to the Federal Communications Commission’s administrative orders will set the stage for more challenges from regulated companies and circuit splits as cases percolate through the lower courts, attorneys say.
The ruling that the 1950 Administrative Orders Review Act—also known as the Hobbs Act—doesn’t preclude judicial review of FCC orders under the Telephone Consumer Protection Act is a “game changer” for the TCPA defense bar, said Mike McTigue, a partner at Skadden, Arps, Slate, Meagher & Flom LLP.
Most of the FCC’s rules have tried to broaden the scope of the TCPA beyond its original purpose, McTigue said.
McLaughlin Chiropractic Associates Inc. v. McKesson Corp. “opens the the door for many arguments that defendants can make about liability under claims that we think are stretched,” he said.
And that means centering arguments more around the language of the TCPA itself rather than the FCC’s interpretation, said Alexis Buese, a partner at Bradley Arant Boult Cummings LLP.
Attorneys should expect and prepare more statutory construction arguments, she said.
“Plaintiffs aren’t going to be able to short circuit litigation simply by pointing to the FCC order alone,” Buese said. “They’re going to need to defend the statutory basis” for their claims.
“It seems to me that the court is heading towards just look at the statute,” McTigue said. “If the statute answers the question, then you don’t need to go beyond that or stretch the statute to get a particular result.”
Loper Bright Extension
The case, which arose out of a dispute over junk faxes, centered on whether the Hobbs Act—which says the FCC’s final orders are only reviewable by federal circuit courts—also bound district courts to defer to those orders.
Two chiropractic practices brought a class action against McKesson Corp. in 2013, alleging the company sent unsolicited online faxes in violation of the TCPA. While the case was proceeding, the FCC issued an order in a separate proceeding stating that the law doesn’t apply to online faxes because they don’t create printing costs.
In a 6-3 ruling, the Supreme Court said the Hobbs Act doesn’t preclude district courts from reviewing or invalidating the FCC’s orders under the TCPA.
The decision builds on the high court’s ruling last year in Loper Bright Enterprises v. Raimondo, which overturned decades of precedent stating courts must give deference to agencies’ interpretations of ambiguous laws.
The latest ruling creates an opening for companies to challenge longstanding FCC rules and orders, such as those regarding the Do-Not-Call Registry, Buese said.
The continued rollback of agency deference shows that the Supreme Court is “very loud and clear that the administrative agencies cannot tie the hands of courts to interpret what Congress meant when it passed a statute,” said Michele Shuster, managing partner at Mac Murray & Shuster LLP.
Before McLaughlin, companies could look to FCC guidance and know that courts would honor it, Shuster said.
“That certainty is not there any longer,” she said.
‘No Longer Bound’
But the decision doesn’t automatically mean district courts will issue rulings inconsistent with those of the FCC, said Loyaan Egal, a partner at Morgan, Lewis & Bockius LLP and former FCC enforcement chief under the Biden administration.
“It’s just that they’re no longer bound by the FCC,” he said.
The lack of deference also is going to “put more onus on the courts” to work out among themselves issues under the TCPA that the FCC might not have addressed yet, Egal said.
“Now that district courts have this autonomy, you are going to have potentially a number of conflicting decisions that are going to come out across the country,” he said.
And those varying decisions are likely to “fuel more circuit splits,” Buese said.
Eventually, that’s going to “increase pressure for further Supreme Court clarification,” she said.
The case is McLaughlin Chiropractic Assoc., Inc. v. McKesson Corp., 2025 BL 213824, U.S., No. 23-1226, 6/20/25.
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