Corner Post: A Crossroads for the TCPA and Administrative Law
I would like to start by quoting a passage from Robert Frost.
The Supreme Court’s decision today in Corner Post Inc. v. Board of Governors of the Federal Reserve System marks a pivotal moment for administrative law and its application to the TCPA. The ruling has far-reaching implications for how businesses and consumers interact with federal regulations and the timeframe within which these interactions can be legally contested.
The Court’s Decision
Corner Post, Inc., a truck stop that opened in 2018, challenged Regulation II of the Federal Reserve, which sets interchange fees for debit card transactions (the so-called Durbin Amendment). The regulation was enacted in 2011, but Corner Post only felt its impact when it started operations in 2018. The company joined a lawsuit in 2021, arguing that the fees it was being charged were higher than what the statute permits. The primary legal question was whether the six-year statute of limitations under the APA started when the regulation was enacted or when Corner Post first suffered harm.
The Supreme Court decided that an APA claim accrues when the plaintiff is injured by the final agency action, not when the regulation is enacted. This ruling reversed the Eighth Circuit’s decision, which had dismissed Corner Post’s suit as time-barred.
The Hobbs Act
The Hobbs Act mandates a strict 60-day window to petition for review of final agency orders of the FCC. Typically, in TCPA cases, telemarketers challenge pro-consumer interpretations of statutes promulgated by the FCC. Plaintiffs usually argue that the telemarketer they are suing forfeited their right to challenge interpretations if they do so more than 60 days after the interpretation became final. Plaintiffs usually win on that point. Now, with the Supreme Court’s decision in Corner Post, the Supreme Court has held that the statute of limitations for challenging agency actions, at least under the APA, starts when harm accrues, often when the business is sued, as opposed to when the pro-consumer rule is promulgated, potentially undermining established consumer protections.
Implications for the TCPA
More Leverage for Telemarketers: The ruling allows businesses to challenge administrative regulations long after their enactment, as long as they can show recent harm that falls within the established statute of limitations. In practical terms, it is likely that businesses will champion this decision and telemarketers will exploit it to challenge the FCC’s interpretations of the TCPA under the Hobbs Act, particularly because they can now allege a recent harm: the Supreme Court’s pro-consumer decision in Loper Bright. See my analysis of that case here. This change extends the potential statute of limitations period, as companies might only start their challenges when they experience direct impact, often coinciding with lawsuits against them. Ultimately, Corner Post is likely to prompt telemarketers to adopt the new argument that the Hobbs Act’s statute of limitations begins to run only when they have been harmed, that is, when they have been sued for illegal telemarketing.
Also More Leverage for Consumers: The ruling also might allow consumers to challenge administrative regulations long after their enactment. The above arguments cut both ways, also permitting consumers to mount new challenges to anti-consumer FCC regulations, such as the disastrous Broadnet ruling. This potential actualizes a silver lining amidst concerns raised by the Corner Post decision.
Impact of Loper Bright: One must read the decision in Corner Post in harmony with the Supreme Court’s decision in Loper Bright, which signaled a triumph of statutory construction and a return to analyzing statutory terms in light of their fixed, original public meaning at the time they were adopted. Might Loper Bright constitute new “harm,” reopening the statute of limitations for every agency decision ever promulgated under the APA? Only time will tell. In this regard, Corner Post might signal a blessing and a curse: the decision in Loper Bright might constitute a concrete “harm,” effectively reopening the statute of limitations for review of every single agency action under the APA. Both consumers and illegal telemarketers seeking to challenge agency decisions would be wise to use Corner Post to bring new challenges to FCC regulations. For my part, I believe that their best argument is that that some action, such as the Court’s decision in Loper Bright, just triggered new harm that gives them at least 60 days to mount a challenge to the FCC’s orders under the Hobbs Act.
The Court’s decision today in Corner Post represents a crossroads for the TCPA and administrative law, especially when viewed in light of Loper Bright. By extending the timeframe for challenging federal regulations, the decision empowers both businesses and consumers alike seeking to challenge the deep state, but the decision poses new challenges for consumers who will likely now need to face previously time-barred Hobbs Act challenges. Ultimately, the decision underscores the importance of staying vigilant and proactive in the face of regulatory and legal changes.