PDR Network, LLC v. Carlton Harris Chiropractic, Inc.

(Slip Opinion)              OCTOBER TERM, 2018                                       1

                                       Syllabus

         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)                               1

                             Opinion of the Court

     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
an “unsolicited advertisement” by fax.           

47 U. S. C. §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)           3

                     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.

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: 

588 U. S. ____

 (2019)             5

                      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)          1

              THOMAS, 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 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).
                 Cite as: 

588 U. S. ____

 (2019)            3

               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.
                  Cite as: 

588 U. S. ____

 (2019)             1

                   KAVANAUGH
              KAVANAUGH        , J., dissenting
                       , 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
                 Cite as: 

588 U. S. ____

 (2019)            3

             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 for facial, pre-
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
——————
  1 The 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).
                 Cite as: 

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             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 challenge to an agency’s interpretation of a statute
in an enforcement proceeding. Indeed, in 1947, the year
after the Administrative Procedure Act was enacted, the
Attorney General’s Manual on the Administrative Proce-
dure Act stated: “There are many situations in which the
invalidity of agency action may be set up as a defense in
enforcement proceedings.” Dept. of Justice, Attorney
General’s Manual on the Administrative Procedure Act
100 (1947).
   To be sure, this Court’s decision in Abbott Laboratories
v. Gardner, 

387 U. S. 136

 (1967) (Abbott Labs), revolution-
ized administrative law by also allowing facial, pre-
enforcement challenges to agency orders, absent statutory
preclusion of such pre-enforcement review. 

Id.,

 at 139–
141. But Abbott Labs did not eliminate as-applied review
in enforcement actions. Indeed, doing so would have
                     Cite as: 

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                KAVANAUGH, J., concurring in judgment

thwarted a key aim of the decision, which was to expand
the opportunities for judicial review by allowing both
facial, pre-enforcement challenges and as-applied chal-
lenges to agency action. The Abbott Labs Court pointed
out that only those parties who were part of the pre-
enforcement suit would be “bound by the decree.” 

Id., at 154

.2 The Court did not suggest that other parties would
be precluded from arguing against the legality of the
agency order in enforcement actions.
   The strong presumption of judicial review, the tradition
of allowing defendants in enforcement actions to argue
that the agency’s interpretation is wrong, and this Court’s
landmark decision in Abbott Labs all suggest the proper
default rule: to allow review by the district court of whether
the agency interpretation is correct.
   Further supporting that default rule is the fact that
Congress knows how to explicitly preclude judicial review
in enforcement proceedings. As noted above, the Clean
Water Act, CERCLA, and the Clean Air Act all expressly
preclude judicial review of agency statutory interpreta-
tions in subsequent enforcement actions. The fact that
Congress has expressly precluded judicial review in those
statutes suggests that Congress’ silence in the Hobbs Act
should not be read to preclude judicial review—in other
words, should not be read to bar defendants in enforce-
ment actions from arguing that the agency’s interpretation
of the statute is incorrect. See Russello v. United States,

464 U. S. 16

, 21–26 (1983).
   The Administrative Procedure Act, 

5 U. S. C. §703

,
further confirms that the appropriate default rule is to
——————
   2 If a party challenges an agency action in a facial, pre-enforcement

suit, that specific party may be barred by ordinary preclusion principles
from relitigating the same question against the agency in a future
enforcement action. See Abbott Labs, 

387 U. S., at 154

. That scenario
is not present here because PDR did not bring a facial, pre-enforcement
suit in 2006.
8                PDR NETWORK, LLC v.
          CARLTON & HARRIS CHIROPRACTIC, INC.
            KAVANAUGH, J., concurring in judgment

allow judicial review. Section 703 provides: “Except to the
extent that prior, adequate, and exclusive opportunity for
judicial review is provided by law, agency action is subject
to judicial review in civil or criminal proceedings for judi-
cial enforcement.” The Government acknowledges that
§703 “establishes a general rule that, when a defendant’s
liability depends in part on the propriety of an agency
action, that action ordinarily can be challenged in a civil or
criminal enforcement suit.” Brief for United States as
Amicus Curiae 24. Unlike the Clean Water Act, CERCLA,
and the Clean Air Act, moreover, the Hobbs Act does not
provide that facial, pre-enforcement review is (in §703
terms) the “exclusive opportunity” for judicial review for
purposes of §703. More on that point later.
   This Court’s precedents interpreting analogous statutes
lend additional support for the default rule of allowing
review of the agency’s interpretation in the district court
enforcement action. For example, certain Department of
Labor orders promulgating occupational safety and health
standards are directly reviewable in the courts of appeals.
See 

29 U. S. C. §655

(f). In enforcement proceedings, this
Court has routinely considered defendants’ arguments
that the Administration’s interpretation of a statute is
incorrect. See Whirlpool Corp. v. Marshall, 

445 U. S. 1, 4

,
7–8, 11 (1980). Likewise, certain SEC orders are directly
reviewable in a court of appeals.          See 15 U. S. C.
§§78y(a)(1), (3), (b)(1), (3). In enforcement proceedings,
this Court again has routinely considered defendants’
arguments that the SEC’s interpretation of a statute is
incorrect. See United States v. O’Hagan, 

521 U. S. 642

,
666–676 (1997); Ernst & Ernst v. Hochfelder, 

425 U. S. 185

, 212–214 (1976).
   The practical consequences likewise support a default
rule of allowing review. Denying judicial review of an
agency’s interpretation of the statute in enforcement
actions can be grossly inefficient and unfair. It would be
                 Cite as: 

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             KAVANAUGH, J., concurring in judgment

wholly impractical—and a huge waste of resources—to
expect and require every potentially affected party to
bring pre-enforcement Hobbs Act challenges against every
agency order that might possibly affect them in the future.
After all, as Justice Powell stated in a similar context, it
“is totally unrealistic to assume that more than a fraction
of the persons and entities affected by a regulation—
especially small contractors scattered across the country—
would have knowledge of its promulgation or familiarity
with or access to the Federal Register.” Adamo Wrecking
Co. v. United States, 

434 U. S. 275, 290

 (1978) (concurring
opinion). On some occasions, the entities against whom an
enforcement action is brought may not even have existed
back when an agency order was issued. In short, it is
unfair to expect potentially affected parties to predict the
future.
   In light of that unfairness, Congress traditionally takes
the extraordinary step of barring as-applied review in
enforcement proceedings only in those statutory schemes
where the regulated parties are likely to be well aware of
any agency rules and to have both the incentive and the
capacity to challenge those rules immediately. The Clean
Water Act, CERCLA, and the Clean Air Act generally fit
that description.
   By contrast, the Hobbs Act covers a wide variety of
federal agency orders where potentially affected parties
may not always have the incentive and the capacity to
immediately challenge the orders. Consider the Depart-
ment of Housing and Urban Development rules or De-
partment of Agriculture rules that are covered by the
Hobbs Act, for example. If a party affected by a HUD rule
or Department of Agriculture rule is subject to a later
enforcement action, is the party precluded from arguing
that the rule misinterprets the applicable statute? That
would be extraordinary. Requiring all those potentially
affected parties to bring a facial, pre-enforcement chal-
10               PDR NETWORK, LLC v.
          CARLTON & HARRIS CHIROPRACTIC, INC.
            KAVANAUGH, J., concurring in judgment

lenge within 60 days or otherwise forfeit their right to
challenge an agency’s interpretation of a statute borders
on the absurd. That is no doubt why Congress rarely does
so.
   Indeed, that unfairness raises a serious constitutional
issue. Barring defendants in as-applied enforcement
actions from raising arguments about the reach and au-
thority of agency rules enforced against them raises signif-
icant questions under the Due Process Clause. In Adamo
Wrecking, Justice Powell concurred to say that the
preclusion-of-review provision of the Clean Air Act raises
constitutional issues that “merited serious consideration.”

Id., at 289

. The D. C. Circuit likewise has stated that
provisions of that sort raise a “substantial due process
question.” Chrysler Corp. v. EPA, 

600 F. 2d 904

, 913 (1979).
We can avoid some of those due process concerns by adher-
ing to a default rule of permitting judicial review of agency
legal interpretations in enforcement actions.
   All of those considerations taken together lead to a very
simple principle: When Congress intends to eliminate as-
applied judicial review of agency interpretation of statutes
in enforcement actions, Congress can, must, and does
speak clearly. We cannot presume that Congress silently
intended to preclude judicial review of agency interpreta-
tions of statutes in enforcement actions. Rather, the
default rule is to allow defendants in enforcement actions
to argue that the agency’s interpretation of the statute is
wrong, unless Congress expressly provides otherwise.
                            II
  Unlike the Clean Water Act, CERCLA, and the Clean
Air Act, the Hobbs Act does not expressly preclude review
in enforcement actions. Supporting respondent Carlton’s
position here, the Government offers four arguments that
the Hobbs Act should nonetheless be interpreted to bar
district court review of an agency’s interpretation in an
                  Cite as: 

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             KAVANAUGH, J., concurring in judgment

enforcement proceeding. None is persuasive.
  First, the Hobbs Act provides that the court of appeals
in a facial, pre-enforcement challenge has “exclusive juris-
diction” to “enjoin, set aside, suspend (in whole or in part),
or to determine the validity” of the agency order. 

28 U. S. C. §2342

. All agree that this “exclusive jurisdiction”
language means, at a minimum, that an aggrieved party
may not bring a facial, pre-enforcement action either (1) in
a district court or (2) more than 60 days after entry of the
order. The Government contends that the Hobbs Act’s
reference to “exclusive jurisdiction” accomplishes more
than that, however. The Government argues that the
Act’s reference to “exclusive jurisdiction” also bars judicial
review of the agency’s interpretation in subsequent en-
forcement proceedings.        The Government’s argument
would mean that the district court in an enforcement
proceeding is required to follow the agency’s interpretation
when deciding the case, no matter how wrong the agency’s
interpretation might be.
  The first problem for the Government is that, unlike the
Clean Water Act, CERCLA, and the Clean Air Act, the
Hobbs Act does not expressly preclude as-applied judicial
review of an agency interpretation in subsequent enforce-
ment proceedings. Unlike those other Acts, the Hobbs Act
does not say that agency orders “shall not be subject to
judicial review in any civil or criminal proceeding for
enforcement.” 

33 U. S. C. §1369

(b)(2).
  But the Government seizes on the Hobbs Act’s “exclu-
sive jurisdiction” language. So the question is this: The
exclusive jurisdiction specified by the Hobbs Act is “exclu-
sive jurisdiction” to do what? The Act says “exclusive
jurisdiction” to “enjoin, set aside, suspend,” or “determine
the validity” of the order. Those phrases afford the court
of appeals exclusive jurisdiction to issue an injunction or
declaratory judgment regarding the agency’s order. See

28 U. S. C. §2349

.
12               PDR NETWORK, LLC v.
          CARLTON & HARRIS CHIROPRACTIC, INC.
            KAVANAUGH, J., concurring in judgment

   The Government argues that if the district court could
disagree with the agency’s interpretation in an enforce-
ment proceeding, the district court would be “deter-
min[ing] the validity” of the order in violation of the Hobbs
Act’s grant of exclusive jurisdiction to the court of appeals
in the initial 60-day period. That is incorrect. In this
context, a court “determines the validity” of the order only
by entering a declaratory judgment that the order is valid
or invalid. Critically, if a district court in an enforcement
action disagrees with the agency interpretation, the dis-
trict court does not issue a declaratory judgment or an
injunction against the agency. Rather, the district court
simply determines that the defendant is not liable under
the correct interpretation of the statute. In other words,
in an enforcement action, a district court does not deter-
mine the validity of the agency order.
   That conclusion becomes even more apparent when we
consider what ensues from the action taken by the rele-
vant court. If the court of appeals in a facial, pre-
enforcement action determines that the order is invalid
and enjoins it, the agency can no longer enforce the order.
By contrast, if the district court disagrees with the agen-
cy’s interpretation in an enforcement action, that ruling
does not invalidate the order and has no effect on the
agency’s ability to enforce the order against others. That
contrast shows that the district court does not “determine
the validity” of an order when the district court agrees or
disagrees with the agency interpretation in an enforce-
ment action.
   That conclusion finds further support in analogous
statutes. As noted above, certain SEC orders and rules
are subject to pre-enforcement review in a court of ap-
peals. See 15 U. S. C. §§78y(a)(1), (3), (b)(1), (3). The
court of appeals has “exclusive” jurisdiction to “affirm or
modify and enforce or to set aside the order in whole or in
part” or to “affirm and enforce or to set aside the rule.”
                  Cite as: 

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             KAVANAUGH, J., concurring in judgment

§§78y(a)(3), (b)(3). But despite the “exclusive” jurisdiction
language, that provision has never been read to bar sub-
sequent district court review of the SEC’s interpretation of
a statute in an enforcement proceeding. See O’Hagan, 521
U. S., at 666–676; Ernst & Ernst, 425 U. S., at 212–214.
   In short, the text of the Hobbs Act is best read to mean
that PDR can argue that the agency’s interpretation of the
TCPA is wrong. And the District Court can decide what
the statute means under the usual principles of statutory
interpretation, affording appropriate respect to the agen-
cy’s interpretation. By doing so, the District Court will not
“determine the validity” of the agency order in violation of

28 U. S. C. §2342

.
   Even if the text of §2342 is deemed ambiguous, ambigu-
ity is not enough to deprive a party of judicial review of the
agency’s interpretation in an enforcement action. To
deprive a defendant such as PDR the opportunity to con-
test the agency’s interpretation, Congress must expressly
preclude review. The Hobbs Act does not do so.
   Second, the Government contends that one of this
Court’s cases—Yakus v. United States, 

321 U. S. 414

(1944)—already interpreted a statute similar to the Hobbs
Act to bar as-applied review in enforcement actions. The
Government incorrectly reads that decision.
   In Yakus, the Court considered whether the facial, pre-
enforcement procedure prescribed by the Emergency Price
Control Act of 1942 for determining the validity of pricing
orders barred as-applied review in enforcement actions.
   The defendants in Yakus had been tried and convicted of
selling wholesale cuts of beef at prices exceeding the max-
imum price prescribed by regulation. The defendants did
not use the procedure established by the Emergency Price
Control Act to raise a facial, pre-enforcement challenge to
the price regulation. But they did raise a challenge to the
legality of the regulation as part of their defense to the
criminal prosecution.
14               PDR NETWORK, LLC v.
          CARLTON & HARRIS CHIROPRACTIC, INC.
            KAVANAUGH, J., concurring in judgment

   Section 204(d) of the Emergency Price Control Act con-
tained two key sentences. The first sentence said that a
specially created federal court had “exclusive jurisdiction
to determine the validity of any regulation or order.” 

56 Stat. 33

 (emphasis added). That first sentence is roughly
akin to the language in the Hobbs Act. The second sen-
tence said: “Except as provided in this section, no court,
Federal, State, or Territorial, shall have jurisdiction or
power to consider the validity of any such regulation,
order, or price schedule.” 

Ibid.

 (emphasis added). That
second sentence is not replicated in the Hobbs Act, but is
roughly akin to the preclusion of review provisions in the
modern Clean Water Act, CERCLA, and Clean Air Act.
   According to the Yakus Court, the first sentence of the
Emergency Price Control Act, which gave a specific court
exclusive jurisdiction to determine the validity of certain
regulations, “coupled with the provision” that explicitly
provided that no other court had jurisdiction to consider
the validity of those same regulations, deprived the dis-
trict court of power to consider the relevant price regula-
tion. Yakus, 

321 U. S., at 430

 (emphasis added).
   By its use of the phrase “coupled with,” the Court made
plain that those two sentences of the Emergency Price
Control Act together barred district court review. The first
sentence alone was not enough. Importantly, moreover,
Yakus did not treat the second sentence of the Emergency
Price Control Act as redundant of or as a restatement of
the first. On the contrary, the Court recognized that the
two provisions accomplish separate objectives. The first
sentence gave a particular court exclusive jurisdiction to
decide a facial, pre-enforcement challenge. But the word
“exclusive” did not on its own bar any subsequent review
in as-applied enforcement actions. If it had, then the
second sentence of the Emergency Price Control Act would
not have been necessary. Yet the Act included the second
sentence and, importantly, the Yakus Court then relied
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             KAVANAUGH, J., concurring in judgment

expressly on that second sentence as part of the basis for
finding review precluded in subsequent enforcement
proceedings.
   Six years after Yakus, Congress enacted the Hobbs Act.
The Government here contends that Congress modeled the
Hobbs Act on the Emergency Price Control Act. But Con-
gress did not incorporate both sentences of the relevant
statutory language from the Emergency Price Control Act
into the Hobbs Act. In enacting the Hobbs Act, Congress
incorporated something resembling the first sentence of
the Emergency Price Control Act granting the court of
appeals exclusive jurisdiction to entertain facial, pre-
enforcement challenges to determine the validity of agency
action. But Congress did not incorporate the second sen-
tence of the Emergency Price Control Act, which stated
that no other court had jurisdiction even “to consider”
those same agency orders. In the Hobbs Act, in other
words, Congress did not include the language from the
Emergency Price Control Act that, as interpreted in Ya-
kus, would have expressly communicated Congress’ intent
to preclude district courts from considering the validity of
certain regulations.
   In relying on Yakus, the Government disregards that
critical difference between the text of the Emergency Price
Control Act and the text of the Hobbs Act. Because the
text of the Emergency Price Control Act differs signifi-
cantly from the text of the Hobbs Act, the Government is
incorrect that Yakus supports the Government’s interpre-
tation of the Hobbs Act. Indeed, if anything, Yakus sup-
ports the contrary interpretation of the Hobbs Act because
Yakus expressly rested its no-judicial-review conclusion in
part on a sentence of the Emergency Price Control Act
that Congress left out of the Hobbs Act.
   One more point on Yakus: The Government’s reliance on
that decision is problematic for yet another reason. Yakus
was a wartime case, where the need for quick and defini-
16               PDR NETWORK, LLC v.
          CARLTON & HARRIS CHIROPRACTIC, INC.
            KAVANAUGH, J., concurring in judgment

tive judicial rulings on the legality of agency orders was at
its apex. That wartime need renders Yakus, in Justice
Powell’s words, “at least arguably distinguishable” in civil
enforcement proceedings. Adamo Wrecking, 

434 U. S., at 290

 (concurring opinion).
   In short, as Yakus makes clear, the phrase “exclusive
jurisdiction to determine the validity” does not itself bar
subsequent district court review of the agency’s interpre-
tation in enforcement proceedings. And when we return to
the Hobbs Act, the same conclusion holds: The phrase
“exclusive jurisdiction” to “determine the validity” does
not bar subsequent district court review in enforcement
proceedings.
   Third, the Government suggests that as-applied review
in district courts is not necessary because an affected
party who did not bring a facial, pre-enforcement chal-
lenge can always petition the agency for reconsideration,
reopening, a new rulemaking, a declaratory order, or the
like, and then obtain judicial review of the agency’s denial.
The Government’s argument is wrong.
   To begin with, if the Government supports judicial
review after the initial Hobbs Act period, then why force
review into that convoluted route rather than just sup-
porting judicial review in an enforcement action? The
Government has no answer.
   More fundamentally, the Government’s promise of an
alternative path of judicial review is empty. The Govern-
ment acknowledges that judicial review may not always be
available under that route. And even if judicial review is
available, it may only be deferential judicial review of the
agency’s discretionary decision to decline to take new
action, not judicial review of the agency’s initial interpre-
tation of the statute. As a result, the Government’s prom-
ise of an alternative path of judicial review is illusory and
does not supply a basis for denying judicial review in
district court enforcement actions.
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             KAVANAUGH, J., concurring in judgment

   Fourth, the Government suggests that it would be a
practical problem for agencies if the Hobbs Act did not bar
as-applied review of agency interpretations in enforcement
actions. That policy-laden argument cannot overcome the
text of the statute and the traditional administrative law
practice.
   In any event, the argument is unpersuasive even on its
own terms. If an agency order is upheld in a facial, pre-
enforcement challenge, but then a district court and dif-
ferent court of appeals disagree with the agency’s inter-
pretation in a future as-applied challenge, that will create
a circuit split on the interpretation of the law and likely
trigger review in this Court. The Government does not
like that possibility. The Government would prefer to
choke off all litigation at the pass. But circuit splits and
this Court’s review happen all the time with all kinds of
federal laws. There is no reason to think that Congress
wanted to short-circuit that ordinary system of judicial
review for the many agencies and multiplicity of agency
orders encompassed by the Hobbs Act. And there is cer-
tainly no basis to interpret a silent statute as achieving
that extraordinary close-the-courthouse-door outcome. To
be sure, as it has done with the Clean Water Act,
CERCLA, and the Clean Air Act, Congress can expressly
preclude as-applied review in enforcement actions (subject
to constitutional constraints). But we should not lightly
conclude that Congress wanted to simultaneously deny
judicial review in enforcement actions; blindside defend-
ants who would not necessarily have anticipated that they
should have filed a facial, pre-enforcement challenge;
insulate agencies from circuit splits; and render this
Court’s review of major agency orders less likely. That
would pack a lot of congressional punch into a few oblique
words in the Hobbs Act.
   To the extent we consider practical considerations,
moreover, they cut against the Government. Under the
18               PDR NETWORK, LLC v.
          CARLTON & HARRIS CHIROPRACTIC, INC.
            KAVANAUGH, J., concurring in judgment

Government’s position, when the initial window for facial,
pre-enforcement review closes, no one is able to argue in
court that the regulation is inconsistent with the statute—
no matter how wrong the agency’s interpretation might be.
The effect is to transform the regulation into the equiva-
lent of a statute. In other words, the Government’s argu-
ment means that the District Court would have to afford
the agency not mere Skidmore deference or Chevron def-
erence, but absolute deference. Not Skidmore deference or
Chevron deference, but PDR abdication. See Skidmore v.
Swift & Co., 

323 U. S. 134

 (1944); Chevron U. S. A. Inc. v.
Natural Resources Defense Council, Inc., 

467 U. S. 837

(1984).
                        *     *   *
   In sum, the Hobbs Act does not expressly preclude
judicial review of agency legal interpretations in enforce-
ment actions. Therefore, the Hobbs Act does not bar PDR
from arguing that the FCC’s legal interpretation of the
TCPA is incorrect. The District Court is not bound by the
FCC’s interpretation. In an as-applied enforcement ac-
tion, the district court should interpret the statute as
courts traditionally do under the usual principles of statu-
tory interpretation, affording appropriate respect to the
agency’s interpretation.
   Under the Court’s holding today, if the court on remand
concludes that the FCC’s order was not subject to the
Hobbs Act in the first place, PDR will be able to argue that
the FCC’s interpretation of the TCPA is incorrect. Or if
the court concludes that pre-enforcement review was not
adequate for PDR, then PDR likewise will be able to argue
that the FCC’s interpretation of the TCPA is incorrect. If
the court on remand reaches neither of those conclusions,
however, then the court on remand will confront the ques-
tion that we granted certiorari to decide and that is ana-
lyzed in this separate opinion. For the reasons I have
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            KAVANAUGH, J., concurring in judgment

explained, I would conclude that PDR may argue that the
FCC’s interpretation of the TCPA is incorrect, and that
the District Court is not required to accept the FCC’s
interpretation of the TCPA.
  I respectfully concur in the judgment.