Nack v. Walburg, No. 11-1460 (8th Cir. 2013)
Annotate this CasePlaintiff appealed the district court's grant of summary judgment in favor of defendant in this case arising under the Telephone Consumer Protection Act of 1991 (TCPA), Pub. L. No. 102-243, 105 Stat. 2394. Plaintiff's claims were based upon the receipt of one fax advertisement from defendant, which plaintiff's agent undisputedly consented to receive. The one fax plaintiff received did not contain opt-out language that he argued was mandated by federal regulation. According to the FCC, the contested opt-out language was required, even on faxes sent after obtaining a potential recipient's consent. The court reversed because the Administrative Orders Review Act (Hobbs Act), 28 U.S.C. 2342 et seq., precluded the court from entertaining challenges to the regulation other than on appeals arising from agency proceedings. Without addressing such challenges, the court could not reject the FCC's plain-language interpretation of its own unambiguous regulation.
Court Description: Civil case - Telephone Consumer Protection Act of 1991. District court erred in granting defendant summary judgment on plaintiff's claim that his receipt of one fax advertisement from defendant which did not contain the opt-out language mandated by 47 C.F.R. Sec. 64.1200(a)(3)(iv) violated the Telephone Protection Act as amended by the Junk Fax Prevention Act of 2005; the regulation, as written, requires the opt-out language even if the sender received prior express authorization to send the fax; this plain-language interpretation of the regulation is consistent with the FCC's proffered interpretation of the regulation; at this stage of the matter, the court could not entertain arguments that the unambiguous regulation is contrary to unambiguous statutory language or that the application of the regulation was arbitrary or capricious as such challenges would be precluded by the Hobbs Act.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.