4th Circuit, Parties Focus on Interpretive Rule Issues in SCOTUS-Remanded Junk Fax Case

v. PDR Network junk fax decision last year (see 1906200055). Judges repeatedly pressed the attorney for the plaintiff-appellant and a lawyer from amicus briefer DOJ on the issue. Carlton attorney Glenn Hara of Anderson and Wanca and the judges discussed the merits of the FCC rule. Hara said the FCC made clear multiple times it treats junk faxes differently than phone calls because of different governing statutes. Telephone Consumer Protection Act practitioners always take pains to differentiate between the two, since "they're different worlds," he said. But it's immaterial under pro se rules whether the junk fax sender is a for-profit or nonprofit entity, he said: Because there has been no discovery, it's unclear whether the PDR faxes are indirectly commercial, trying to solicit further business. Hara also complained of "an abuse of discretion" by the U.S. District Court in Huntington, West Virginia, for dismissing the plaintiff's complaint without allowing an amended one. A district court has to follow an interpretive law because statutory language that talks about orders doesn’t distinguish between legislative and interpretive rules, said DOJ lawyer Mark Stern. Judge Pamela Harris said the 4th Circuit is having difficulty with the new arguments that have come to it since the SCOTUS remand. "I'm finding this frustrating," she said. PDR lawyer Kwaku Akowuah of Sidley Austin said his client always takes the position the lower court was right in its reasoning that it wasn't bound by the rule and could look at the statute. Court proceedings, held remotely, were delayed about two minutes partway through due to frozen screen. Also hearing the case were Judges Albert Diaz and Stephanie Thacker.