FCC Files Brief Against Attempt To Appeal Telemarketing Call Case To Supreme Court
June 23, 2014 at 12:49 PM (PT)
The FCC has filed a brief in opposition to the petition by plaintiff MARK LEYSE to appeal to the SUPREME COURT his loss of a case against CLEAR CHANNEL and its CRITICAL MASS MEDIA division complaining about automated telemarketing calls. LEYSE filed a petition for writ of certiorari seeking SUPREME COURT review of the Sixth Circuit's affirmation of an OHIO District Court ruling that the calls made by CRITICAL MASS MEDIA on behalf of AC WLTW (LITE FM)/NEW YORK in JUNE 2005 fell under an exemption to the TELEPHONE CONSUMER PROTECTION ACT. LEYSE has sued various parties over the years over the use of unsolicited automated telemarketing calls or distribution of unwanted ad flyers; the present case was filed in OHIO in APRIL 2009 after a materially similar case on the same facts was dismissed by the U.S. District Court for the Southern District of NEW YORK in 2006.
In the brief, the FCC argues that the unpublished opinion of the Court of Appeals, which held that the court lacked jurisdiction to consider whether the Commission's rules regarding the calls are invalid, "is correct and does not conflict with any decision of this Court or another court of appeals ... It is clear from petitioner’s filings in the court of appeals that the alleged invalidity of the FCC’s regulations was critical to the success of his lawsuit. In that circumstance, the Hobbs Act scheme precludes collateral attack on the FCC’s order. If the effect of the suit is to invite the reviewing court to 'determine the validity of [a] final order' of the FCC ... a district court does not have jurisdiction to consider that claim."