In Leyse v. Clear Channel Broadcasting Inc., — F.3d —-, 2012 WL 3854783 (6th Cir. 2012), the Court of Appeals gave Chevron deference to the FCC’s ruling permitting the defendant’s advertisements. In June 2005, a radio station owned by Clear Channel called Leyse’s residential telephone number and delivered a prerecorded message advertising defendant’s radio services. Leyse filed a class-action complaint that same month against the defendants (collectively, “Clear Channel”) in the United States District Court for the Southern District of New York, alleging that the pre-recorded telephone call violated the TCPA.
Despite Leyse’s many attempts to show that the FCC’s decision is arbitrary and capricious, the record here does not support that finding. In reaching its exemption decision, the FCC considered the impact on privacy rights. See 2003 Report and Order ¶¶ 1, 136; 2002 NPRM ¶ 30. For example, the FCC noted that “[f]ew commenters in this proceeding described either receiving such messages or that they were particularly problematic.” 2003 Report and Order ¶ 145. And the fact that Leyse and other commenters disagree with the result the FCC reached does not detract from the deference accorded to the agency because the FCC considered and rejected these perspectives during its rulemaking. 2003 Report and Order ¶ 145 n.497–99; (FCC Letter at 3–5).
The Court of Appeals for the Sixth Circuit also found that the Hobbs Act did not deprive it of jurisdiction to make its decision – a conclusion it probably should have reached first before it decided to issue its opinion.
Applying the principles from these cases to the present case yields the conclusion that we have juris-diction to consider Leyse’s arguments that the FCC’s exemption decision should be reversed for a litany of reasons (e.g., the decision is not entitled to deference and is arbitrary and capricious). The central object of Leyse’s action is not to enforce or undercut an FCC order; it is to seek damages and an injunction against Clear Channel, a private party, for allegedly violating the TCPA. Clear Channel raised the FCC exemption decision as a defense, and Leyse responded by arguing that the decision is invalid. Leyse’s argument is akin to Maquina Musical’s constitutional arguments over which we exercised jurisdiction. Moreover, the FCC is not a party to this proceeding, as it was in all three prior cases, so the present case is an even stronger case than Maquina Musical for concluding that jurisdiction exists. The presence of the FCC as a party in the case increases the likelihood that the action could be de-fined as a proceeding to enjoin or annul an FCC order. See 47 U.S.C. § 402(a). ¶ Were we to conclude that the Hobbs Act barred the constitutional defenses, Leyse would be left with “no other forum in which to present his … defenses,” a problem recognized in Maquina Musical. Szoka, 260 F.3d at 528. Jurisdiction to appeal under the Hobbs Act “is invoked by filing a petition as provided by section 2344 of this title.” 28 U.S.C. § 2342. And § 2344 allows “any party aggrieved by the final order” to institute an appeal in a court of appeals if it meets certain criteria. (Emphasis added.) “A ‘party aggrieved’ is one who participated in the agency proceeding. A nonparty to the proceeding of the Commission must file a petition for reconsideration as a condition precedent to judicial review of the Order.” Nat’l Ass’n of State Util. Consumer Advocates v. FCC, 457 F.3d 1238, 1247 (11th Cir.2006), modified on other grounds on denial of reh ‘g, 468 F.3d 1272 (11th Cir.2006). Leyse, like Maquina Musical, is not a party aggrieved.