In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3172
CE D ESIGN, L IMITED, an Illinois corporation,
individually and as the representative of a
class of similarly situated persons,
Plaintiff-Appellant,
v.
P RISM B USINESS M EDIA, INCORPORATED ,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:07-cv-05838—Rebecca R. Pallmeyer, Judge.
A RGUED JANUARY 20, 2010—D ECIDED M AY 27, 2010
Before F LAUM, K ANNE, and E VANS, Circuit Judges.
E VANS, Circuit Judge. This is a junk fax case, and like
most such cases, the facts are not especially juicy. In 2004
Prism Business Media, Inc., sent CE Design, Limited, a
2 No. 09-3172
fax advertising a trade show.1 That’s it. But that small act
sparked a lawsuit that presents some interesting juris-
dictional and regulatory questions. CE Design sued
Prism under the Telephone Consumer Protection Act
(TCPA), which prohibits the use of fax machines to send
unsolicited advertisements. See 47 U.S.C. § 227(b)(1)(C).
Prism sought summary judgment on the ground that it
shared with CE Design an “established business relation-
ship” (EBR)—a status which, Prism argued, provided a
complete defense under the Federal Communications
Commission’s (FCC) orders implementing the TCPA. In
response, CE Design asked the district court to ignore
the FCC orders because, according to it, Congress did not
authorize the FCC to establish an EBR defense. Because
CE Design’s request sounded a lot like one “to enjoin, set
aside, suspend (in whole or in part), or to determine
the validity” of a final FCC order—tasks which the Admin-
istrative Orders Review Act places within the exclusive
jurisdiction of the courts of appeals, see 28 U.S.C. § 2342(1);
47 U.S.C. § 402(a)—the district court concluded that it
lacked jurisdiction to consider the validity of the EBR
defense. After determining that the relationship between
Prism and CE Design met the FCC’s definition of an
EBR, the court granted Prism’s motion for summary
judgment. CE Design appeals.
1
Before this suit was filed, Prism Business Media, Inc., changed
its name to Penton Business Media, Inc., but the parties and the
district court have referred to the defendant as Prism through-
out this litigation. For consistency’s sake, we will do the same.
No. 09-3172 3
The few facts in this case are undisputed. Prism describes
itself as a “business-to-business media company” that
publishes trade magazines and sponsors industry-
specific trade shows. CE Design, a civil engineering and
design firm, is among the more than five million sub-
scribers to Prism’s publications. Between 1998 and 2008
CE Design subscribed to three of Prism’s publications.
For each subscription, CE Design’s president and sole
shareholder, John Pezl, filled out Prism’s subscription
card. On at least two of the subscription cards, Pezl
provided CE Design’s fax number among the required
contact information.
On August 23, 2004, Prism sent CE Design the fax that
set this lawsuit in motion. Prism sent the fax to Pezl’s
attention at the fax number he provided in his subscrip-
tion requests. The fax advertised an upcoming trade
show. It included a notice inviting Pezl to write “remove”
on the face of the advertisement and fax it back to a toll-
free number if he believed he received the fax in error or
if he wished to unsubscribe. Instead of accepting that
invitation, CE Design filed this putative class-action
lawsuit.2
In its complaint, CE Design alleged that Prism
violated the TCPA provision prohibiting the use of “any
telephone facsimile machine . . . to send an unsolicited
advertisement to a telephone facsimile machine.” 47 U.S.C.
2
We think it’s worth noting that CE Design is no stranger to
junk fax litigation; it has filed more than 100 similar suits
under the TCPA.
4 No. 09-3172
§ 227(b)(1)(C). In 2005—after Prism sent the fax but before
CE Design filed this suit—Congress passed the Junk Fax
Protection Act (JFPA), which amended the TCPA to
exempt from the ban on unsolicited fax advertisements
any faxes sent “from a sender with an established
business relationship with the recipient.” 47 U.S.C.
§ 227(b)(1)(C)(i). But the pre-JFPA version of the TCPA
applies in this case, and the EBR exemption does not
appear in that version of the statute. Instead, before 2005
the EBR exemption appeared only in FCC reports and
orders implementing the TCPA. See, e.g., In Re Rules &
Regulations Implementing the Tel. Consumer Prot. Act of 1991
(1992 Report and Order), 7 F.C.C.R. 8752, 8779 n.87
(Oct. 16, 1992). Specifically, the FCC’s 1992 Report and
Order states that “facsimile transmission from persons
or entities who have an established business relation-
ship with the recipient can be deemed to be invited or
permitted by the recipient.” Id.
In its summary judgment motion, Prism argued that the
FCC’s 1992 Report and Order provides a complete
defense to CE Design’s TCPA claim. Prism argued that CE
Design’s status as a subscriber to Prism’s publications
meant that they had an EBR at the time Prism faxed the
advertisement, and accordingly, the fax it sent CE Design
should be deemed invited. In response, CE Design
argued that the district court should ignore the 1992
Report and Order, as well as subsequent FCC orders
demonstrating that before Congress passed the JFPA, the
FCC considered the EBR exemption to apply to faxed
advertisements. See, e.g., In Re Rules & Regulations Imple-
menting the Tel. Consumer Prot. Act of 1991, 10 F.C.C.R.
No. 09-3172 5
12391, 12408 (Aug. 7, 1995); In Re Rules & Regulations
Implementing the Tel. Consumer Prot. Act of 1991 (2003
Report & Order), 18 F.C.C.R. 14014, 14127 (July 3, 2003). CE
Design argued that the FCC was not authorized to inter-
pret the TCPA to include an EBR exemption, and that
even if it were, the FCC’s interpretation is unreasonable.
In its thorough and thoughtful opinion granting Prism
summary judgment, the district court concluded that it
lacked jurisdiction to consider CE Design’s argument
that the FCC was not authorized to establish an EBR
defense. Specifically, it noted that the Administrative
Orders Review Act, better known as the Hobbs Act,
reserves to the courts of appeals the power “to enjoin, set
aside, suspend (in whole or in part), or to determine the
validity of” all final FCC orders, see 28 U.S.C. § 2342(1);
47 U.S.C. § 402(a), and that before seeking relief from
an appellate court, a party aggrieved by the FCC’s final
order must petition the FCC for reconsideration, see
47 U.S.C. § 405(a). The district court observed that CE
Design’s characterization of the EBR exemption as “unau-
thorized” amounted to an indirect challenge to the
FCC’s rule, and accordingly, it concluded that it lacked
jurisdiction to consider the validity of the EBR exemp-
tion. Instead, the district court considered only whether
the EBR exemption applies to the facts of this case.3 After
3
Although the Hobbs Act prevents the district court from
considering the validity of final FCC orders, the court retains
jurisdiction to determine whether the parties’ actions violate
(continued...)
6 No. 09-3172
carefully considering the FCC’s EBR definition, the
district court determined that at the time Prism faxed
CE Design its advertisement, the parties had an EBR.
Accordingly, the fax was deemed to have been invited,
and Prism was entitled to summary judgment on CE
Design’s TCPA claim.
We review the district court’s grant of summary judg-
ment de novo. See Covell v. Menkis, 595 F.3d 673, 675 (7th
Cir. 2010). CE Design presses two main arguments on
appeal: first, that the district court’s jurisdictional
analysis is erroneous because, according to CE Design,
the court had no need to consider the EBR exemption at
all; and second, that even if the EBR exemption applies,
an EBR exists only where the recipient is a residential
subscriber. Because CE Design characterizes itself as a
business subscriber, it argues that its relationship with
Prism does not qualify as an EBR.
In challenging the district court’s jurisdictional analysis,
CE Design argues that under the familiar analytical
framework established in Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984), there
was no need for the court to consider the FCC’s rules or
the Hobbs Act’s jurisdictional bar in evaluating its
TCPA claim. The familiar Chevron framework is a tool
for judicial review of “an agency’s construction of the
3
(...continued)
FCC rules. See, e.g., U.S. West Commcn’s, Inc. v. Jennings,
304 F.3d 950, 958 & n.2 (9th Cir. 2002); GTE S., Inc. v. Morrison,
199 F.3d 733, 742-43, 746-67 (4th Cir. 1999).
No. 09-3172 7
statute which it administers.” Chevron, 467 U.S. at 842; see
also FDA v. Brown & Williamson Tobacco Corp., 529 U.S.
120, 132 (2000). In applying the Chevron framework,
the court first asks whether the statute is silent or am-
biguous on the question at issue, and if it is, the court
will look to the agency regulations to determine
whether they are based on a reasonable construction of
the statute. Chevron, 467 U.S. at 842-43; Castro v. Chi. Hous.
Auth., 360 F.3d 721, 727 (7th Cir. 2004). According to CE
Design, the district court needed to consider its jurisdic-
tion to review the EBR defense only if it found the TCPA
ambiguous and moved past step one of the Chevron
analysis. Specifically, CE Design argues that the FCC-
created EBR defense conflicts with the TCPA’s
plain language, which prohibits businesses from faxing
unsolicited advertisements and defines “unsolicited
advertisement” as one “which is transmitted to any
person without that person’s prior express invitation or
permission.” See 47 U.S.C. § 227(a)(5). CE Design asserts
that the phrase “prior express invitation or permission”
is unambiguous, and accordingly, it argues that under
the Chevron framework, there was no need for the
district court to even consider the agency-created EBR
defense. CE Design therefore concludes that the Hobbs
Act’s proscription of district court review of final FCC
orders should never have come into play in this case.
CE Design’s argument presents something of a chicken-
and-an egg question: What comes first, the Hobbs Act’s
jurisdictional restrictions or step one of Chevron? But
while one can go around and around on the chicken-and-
the-egg dilemma, an Article III court’s obligation to
8 No. 09-3172
ensure its jurisdiction to resolve a controversy precedes
any analysis of the merits. See Davis v. Fed. Election Comm’n,
128 S. Ct. 2759, 2768 (2008); Morales-Morales v. Ashcroft,
384 F.3d 418, 421 (7th Cir. 2004). In arguing that the
district court can put off considering its jurisdiction
until after step one of Chevron, CE Design turns that
traditional approach on its head. What’s more, CE
Design’s suggestion that the district court can embark
on step one of the Chevron analysis without reviewing the
FCC’s EBR defense ignores both the purpose and the
effect of the Chevron framework. Chevron is designed to
help courts determine the validity of a challenged agency
regulation by determining two things: First, whether
Congress expressly or implicitly delegated authority to the
agency to fill in any gaps in the statute that the agency
administers; and second, whether the agency’s rule is
based on a reasonable construction of that statute. Chevron,
467 U.S. at 842-44; see also Bellum v. PCE Constructors,
Inc., 407 F.3d 734, 738-39 (5th Cir. 2005) (noting that
Chevron guides a court’s determination of a regulation’s
validity); Castro, 360 F.3d at 727 (same). The purpose
of even just the first step of the Chevron analysis is to
determine the validity of the agency’s interpretation. See
Bankers Life & Cas. Co. v. United States, 142 F.3d 973, 983
(7th Cir. 1998); Square D. Co. & Subsidiaries v. C.I.R., 438
F.3d 739, 745 (7th Cir. 2006). If at step one the court deter-
mines that the statutory language is clear, it then decides
whether the plain meaning of the text supports or
opposes the challenged regulation. Khan v. United States,
548 F.3d 549, 554 (7th Cir. 2008). The effect of that
decision is to “ ‘either strike or validate’ ” the regulation
No. 09-3172 9
interpreting the statute. Id. (quoting Bankers Life, 142
F.3d at 983). But deeming agency action valid or
ineffective is precisely the sort of review that the
Hobbs Act delegates to the courts of appeals in cases
challenging final FCC orders.4 28 U.S.C. § 2342(1); FCC v.
ITT World Commc’ns, Inc., 466 U.S. 463, 468 (1984); see also
Wilson v. A.H. Belo Corp., 87 F.3d 393, 399-400 (9th Cir.
1996) (noting that asking a district court to agree or dis-
agree with an FCC ruling invokes the Hobbs Act’s juris-
dictional bar).
CE Design argues that asking a district court to “ignore”
the EBR defense at step one of its Chevron analysis
is not the same as asking the court to invalidate the
rule. We just don’t see the difference in this fine distinc-
tion. When Prism raised the EBR exemption as a defense
to CE Design’s TCPA claim, it inherently called upon
the district court to enforce the FCC’s rule. CE Design’s
request that the court “ignore” the rule is just another
way of asking it not to enforce the rule. That CE Design’s
challenge to the FCC’s EBR defense arises in a dispute
between private parties makes no difference—the
Hobbs Act’s jurisdictional limitations are “equally ap-
plicable whether [a party] wants to challenge the rule
directly . . . or indirectly, by suing someone who can be
expected to set up the rule as a defense in the suit.” City
of Peoria v. Gen. Elec. Cablevision Corp. (GECCO), 690
4
On appeal CE Design has not argued that the 1992 Report
and Order setting forth the EBR defense is anything other
than a final FCC order.
10 No. 09-3172
F.2d 116, 120 (7th Cir. 1982); see also United States v. Dunifer,
219 F.3d 1004, 1006-07 (9th Cir. 2000) (noting that the
Hobbs Act’s jurisdictional bar applies to affirmative
defenses); United States v. Any & All Radio Station Trans-
mission Equip., 207 F.3d 458, 463 (8th Cir. 2000) (holding
that Hobbs Act barred district court review of challenge
to validity of FCC regulations raised as defense in forfei-
ture action); Cahnmann v. Sprint Corp., 133 F.3d 484, 487-
88 (7th Cir. 1998) (noting that where issue arises in
federal suit regarding validity of FCC order court “would
have to interrupt the litigation and . . . compel the
parties to resort to the FCC for a determination of that
validity”). That is exactly the case here, where Prism
pointed to the FCC’s EBR exemption as a defense to CE
Design’s statutory claim. Because CE Design argued that
the district court should ignore—or in other words,
invalidate—the FCC’s EBR exemption for purposes of
this suit, the Hobbs Act’s jurisdictional bar came into
play. See Any & All Radio Station Transmission Equip., 207
F.3d at 463 (“Whichever way it is done, to ask the
district court to decide whether the regulations are
valid violates” the Hobbs Act.); see also Biggerstaff v. FCC,
511 F.3d 178, 184-85 (D.C. Cir. 2007) (noting that Hobbs
Act precludes challenge to EBR defense).
CE Design’s attempt to show that there is a difference
between asking the court to ignore a regulation at
Chevron’s step one and asking it to set aside or
invalidate a regulation cannot be squared with its
repeated characterization of the FCC’s decision to
establish the EBR defense as being unauthorized or
“ultra vires.” CE Design describes the legislative history of
No. 09-3172 11
the EBR defense and argues that Congress rejected it
intentionally and never gave the FCC the authority to
resurrect it. But as the Supreme Court has made clear, a
litigant can’t avoid the Hobbs Act’s jurisdictional
bar simply by accusing an agency of acting outside its
authority. See ITT World Commc’ns, Inc., 466 U.S. at 468-
69; see also Bd. of Governors of the Fed. Reserve Sys. v. MCorp
Fin., Inc., 502 U.S. 32, 43-44 (1991) (same with respect
to exclusive jurisdiction provision set forth in 12 U.S.C.
§ 1818(i)(1)). And as we have explained, Chevron is de-
signed to resolve whether Congress expressly or
implicitly delegated authority to an agency to interpret
a statute. See Joseph v. Holder, 579 F.3d 827, 831 (7th
Cir. 2009). If it did not, the agency action is invalid. See
Ceta v. Mukasey, 535 F.3d 639, 642 & 643 n.7 (7th Cir. 2008)
(noting that finding statute clear at Chevron’s step one
invalidates challenged regulation). CE Design’s insistence
that the FCC’s EBR defense is “unauthorized” merely
illustrates Prism’s point that their dispute turns on the
validity of an FCC order. See ITT World Commc’ns, Inc., 466
U.S. at 468-69; Sw. Bell Tel. Co. v. Ark. Pub. Serv. Comm’n,
738 F.2d 901, 906-07 (8th Cir. 1984) (vacated on other
grounds) (noting that a party “cannot bypass” the Hobbs
Act by characterizing agency action as “ultra vires”). But
the Hobbs Act prevents the district court from
reviewing the validity of FCC regulations, and we, in
turn, presume them valid for purposes of this appeal.
See Jennings, 304 F.3d at 958 n.2.5
5
CE Design suggests in a footnote in its opening brief that
we have jurisdiction under the Hobbs Act to invalidate the
(continued...)
12 No. 09-3172
None of the cases on which CE Design relies in chal-
lenging the district court’s jurisdictional analysis demon-
strate that a district court may proceed through step one
of the Chevron analysis without rubbing up against the
Hobbs Act’s jurisdictional bar. Some of the cases to
which CE Design points involve state-agency decisions
or rules that are not even subject to the Hobbs Act’s
jurisdictional bar and therefore have nothing to say
about the Hobbs Act’s interplay with Chevron. See, e.g.,
Cler v. Ill. Educ. Ass’n, 423 F.3d 726 (7th Cir. 2005); Ind. Bell
Tel. Co. v. McCarty, 362 F.3d 378 (7th Cir. 2004); United
States v. Dierckman, 201 F.3d 915 (7th Cir. 2000); Sprint
Spectrum L.P. v. State Corp. Comm’n of the State of Kan., 149
F.3d 1058 (10th Cir. 1998). Others involve disputes over
the application—rather than the validity—of FCC rules.
See, e.g., In re Airadigm Commc’ns, Inc., 519 F.3d 640 (7th
Cir. 2008); Fedor v. Cingular Wireless Corp., 355 F.3d 1069
(7th Cir. 2004). Still others clearly state that no FCC deci-
sion governed the matter. See, e.g.,Verizon New Eng., Inc.
v. Me. Pub. Util. Comm’n, 509 F.3d 1, 11 (1st Cir. 2007);
TCG N.Y., Inc. v. City of White Plains, 305 F.3d 67, 76 (2d
Cir. 2002).
The few remaining cases to which CE Design points
do not even mention the Hobbs Act’s jurisdictional bar, let
5
(...continued)
FCC’s EBR exemption. But of course, CE Design “cannot use
an appeal from a district court to circumvent the Hobbs Act’s
requirement that a challenge to an FCC order is subject only
to direct review in a court of appeals.” See GTE S., Inc., 199
F.3d at 743.
No. 09-3172 13
alone describe its interplay with Chevron. CE Design
points with particular urgency to Global Crossing Tele-
communications, Inc. v. Metrophones Telecommunications,
550 U.S. 45 (2007), and Core Communications, Inc. v. Verizon
Pennsylvania, Inc., 493 F.3d 333 (3d Cir. 2007), describing
them as cases applying the Chevron analysis to deter-
mine the legality of FCC rules without proceeding
through the Hobbs Act’s jurisdictional channels. But
those cases involved situations where the FCC attempted
to expand, see Global Crossing, 550 U.S. at 47-48, or limit, see
Core Commc’ns, 493 F.3d at 337, the jurisdiction of the
district courts. The respective courts looked to Chevron
only to answer threshold questions of whether the FCC
could create a cause of action, Global Crossing, 550 U.S.
at 53-55, or limit otherwise available routes to federal
court, Core Commc’ns, 493 F.3d at 339. A closer case is
Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir.
2009), which CE Design cited in its reply brief. In
Satterfield, the Ninth Circuit applied Chevron deference to
an FCC order determining that the TCPA’s ban on using
automatic telephone dialing systems to call cell phone
numbers applied to text messages. Id. at 952-53. There, the
Ninth Circuit embarked on a Chevron analysis of the
FCC’s order without considering the implications of the
Hobbs Act. But the Ninth Circuit’s silence on the issue
does not lend persuasive support to CE Design’s theory
that a district court can engage in the Chevron analysis
without questioning its jurisdiction to determine the
validity of the regulation in question. CE Design simply
has not cited any cases that directly support its central
thesis.
14 No. 09-3172
In a final effort to discredit the district court’s juris-
dictional analysis, CE Design warns us that the conse-
quences of adhering to the Hobbs Act here would be “an
affront to the Constitution” and would allow agency
interpretation to trump congressional intent in a way
that violates separation-of-powers principles. Specifically,
it argues that the district court’s jurisdictional analysis
renders the Hobbs Act unconstitutional by preventing
“the court from reading and applying the plain language”
of the TCPA. But that is pure bluster (dressed up in
CE Design’s rather hyperbolic analogies to nuclear
missiles and the Cold War). In passing the Hobbs Act,
Congress vested the power of agency review of final
FCC orders exclusively in the courts of appeals. 28 U.S.C.
§ 2342(1). The Hobbs Act’s jurisdictional bar thus
does not leave private parties without a mechanism for
judicial review of agency action; it merely requires
litigants to seek review through its specific procedural
path. See GECCO, 690 F.2d at 120-21; see also ITT World
Commc’ns, 466 U.S. at 468 & n.5. To allow parties to
bypass that procedure would ignore Congress’s
“specific grant of exclusive jurisdiction in the courts of
appeals for review of FCC orders.” Sw. Bell, 738 F.2d at
906; see also Am. Bird Conservancy v. FCC, 545 F.3d 1190,
1194 (9th Cir. 2008) (noting that “a plaintiff may not
escape an exclusive avenue of judicial review through
artful pleading”). And the procedural path designed by
Congress serves a number of valid goals: It promotes
judicial efficiency, vests an appellate panel rather than a
single district judge with the power of agency review, and
allows “uniform, nationwide interpretation of the federal
No. 09-3172 15
statute by the centralized expert agency created by Con-
gress” to enforce the TCPA. Dunifer, 219 F.3d at 1008
(quoting N.Y. Co. v. N.Y Dep’t of Labor, 440 U.S. 519, 528
(1979)); see also Sw. Bell, 738 F.2d at 906-07.
Having concluded that the district court correctly
determined that it lacked jurisdiction to consider
whether to enforce the EBR defense in the present case, we
turn to CE Design’s argument that its subscriber rela-
tionship with Prism does not fall within the FCC’s defini-
tion of an EBR. Specifically, it points to a subpart of the
FCC’s 1992 Report and Order stating that “as used in
this section . . . [t]he term ‘established business relation-
ship’ means a prior or existing relationship formed by a
voluntary two-way communication between a person
or entity and a residential subscriber.” See 7 F.C.C.R. at
8792-93. Based on that definition’s inclusion of the term
“residential subscriber,” CE Design argues that an EBR
exists only where the fax recipient is a private individual
or a business run from a residence. Because CE Design
describes itself as a business subscriber, it concludes
that “it did not have an EBR with Prism or any other
broadcaster.”
We agree with the district court’s conclusion that CE
Design’s reading of the FCC’s pre-JFPA definition of EBR
is far too narrow. The definition on which CE Design
bets its hand is located in the implementing regulations
appended to the 1992 Report and Order—specifically,
under the heading “Subpart L—Restrictions on Telephone
Solicitation.” 7 F.C.C.R. at 8790. Subpart L addresses the
TCPA’s limitations on automated calls to residences and
16 No. 09-3172
makes no mention of unsolicited faxes. In that limited
context, it makes sense that the FCC restricted the EBR
definition to residential subscribers—Subpart L is geared
toward preventing people from being bombarded at
home with annoying automated phone calls. In the
section specific to faxed advertisements, the FCC states
that unsolicited faxed ads “can be deemed to be invited
or permitted by the recipient,” but does not in any way
limit the term “recipient,” or otherwise indicate that the
EBR defense is limited to residential subscribers. 7 F.C.C.R.
at 8779 n.87. More importantly, the whole of the 1992
Report and Order demonstrates that the FCC did not
intend the limited reading of the EBR defense that CE
Design ascribes to it here. For example, elsewhere in the
1992 Report and Order the FCC explains that the term
“business relationship” should be construed broadly and
that an EBR is “a prior or existing relationship formed
by a voluntary two-way communication between the
caller and the called party, which relationship has not
been previously terminated by either party.” Id. at 8771.
In describing the types of relationships that are encom-
passed by an EBR, the FCC specifically cited “publishers
with subscribers” as an example. Id. Accordingly, it
would be hard not to conclude that the FCC intended for
relationships like that between Prism and CE Design—a
publisher and its subscriber—to fall within the scope of
the EBR exception.
In various orders issued following the promulgation of
the 1992 rules, the FCC continued to emphasize a broad
reading of the relationships covered by the EBR defense.
In 2001 the FCC issued a public notice reminding con-
No. 09-3172 17
sumers about the TCPA’s junk fax prohibition. In that
notice, the FCC explained that the prohibition on unsolic-
ited faxes “applies to unsolicited advertisements trans-
mitted to both businesses and residences . . . . An estab-
lished business relationship, however, demonstrates
consent to receive fax advertisement transmissions.” 16
F.C.C.R. 4524 (Feb. 20, 2001). In the 2003 Report and
Order, the FCC explained that the EBR exemption was
“sufficient to show that an individual or business has
given their express permission to receive unsolicited
facsimile advertisements.” 6 18 F.C.C.R. at 14127. Given
the FCC’s broad reading of the EBR definition, we agree
with the district court that the FCC did not intend to
limit the EBR exemption to only residential subscribers
who receive unsolicited faxes. And because Prism and
CE Design’s publisher-subscriber relationship falls
within the scope of business relationships the FCC in-
tended the EBR defense to cover, we also agree that the
EBR exemption applies in this case.
The judgment of the district court is A FFIRMED.
6
In the 2003 Report and Order, the FCC reversed its stance
and said that as of the effective date of the new rules it was
implementing, an EBR would no longer provide a defense. But
those rules never took effect before Congress passed the JFPA,
and in the interim the FCC continued to recognize the
EBR exemption.
5-27-10