In Menachem Raitport and Crown Kosher Meat Market, Inc. v. Harbour Capital Corporation, 2018 WL 2186469, at *4–6 (D.N.H., 2018), Judge McAuliffe found that he was bound by the DC Circuit’s ruling on the FCC’s Solicited Fax Rule, not the FCC’s Rule itself.
Raitport argues that “this Court lacks the jurisdiction to follow the D.C. Circuit’s decision [in Bais Yaakov] and must apply the opt-out regulation in this case which was promulgated by FCC pursuant to a 2006 FCC Order [i.e., the Solicited Fax Rule].” Plaintiff’s Memorandum (document no. 98-1) at 3. According to Raitport, because the Hobbs Act vests exclusive jurisdiction to review FCC regulations in the courts of appeals, and because the Court of Appeals for the First Circuit has yet to consider the validity of the Solicited Fax Rule, this court lacks jurisdiction to do anything other than ignore the decision in Bais Yaakov and enforce the rule as written. See Plaintiff’s Memorandum at 4 (“[U]ntil the First Circuit or the Supreme Court rules on the validity of the opt-out regulation, this Court is bound to apply it.”). The court disagrees.  Most obviously, Raitport’s construction of the Hobbs Act would lead to potentially absurd results – something Congress is presumed to seek to avoid – with the Solicited Fax Rule being enforceable in some jurisdictions, but unenforceable in others (most notably the D.C. Circuit and, perhaps, those circuits from which appeals were consolidated by the Multidistrict Litigation Panel in the D.C. Circuit). Additionally, Raitport’s view is inconsistent with the better-reasoned interpretations of the Hobbs Act and the scope of its jurisdiction-limiting provisions.  . . . The Courts of Appeals for the Fourth and Ninth Circuits have similarly held that decisions resolving challenges to FCC regulations that have been consolidated in a single circuit court of appeals by the Multidistrict Litigation Panel are binding nationwide. . . . Moreover, the court notes that other federal district courts (outside of the D.C. Circuit) have specifically held that the decision in Bais Yaakov is binding upon them. See A Custom Heating & Air Conditioning, Inc. v. Kabbage, Inc., No. 16-C-2513, 2018 WL 488257 (N.D. Ill. Jan. 18, 2018); Alpha Tech Pet, Inc. v. LaGasse, LLC, No. 16-C-4321, 2017 WL 5069946 (N.D. Ill. Nov. 3, 2017); Licari Family Chiropractic, Inc. v. Eclinical Works, LLC, No. 8:16-CV-3461-MSS-JSS, 2018 WL 1449581 (M.D. Fla. Feb. 16, 2018).  This court joins those that have concluded that, upon consolidation in the D.C. Circuit by the Multidistrict Litigation Panel, that court of appeals became the sole forum for challenging the FCC’s Solicited Fax Rule. That court invalidated the Solicited Fax Rule, and its holding is binding upon this court. See, e.g., Peck, 535 F.3d at 1057 (“The Hobbs Act provides a framework for determining the validity of final FCC orders, a framework that grants exclusive jurisdiction to the circuit courts. While the district court may not have agreed with the Eleventh Circuit’s analysis in NASUCA, according to the framework for reviewing an FCC decision, the district court was bound by the NASUCA court’s determination that the [FCC’s] Order was invalid.”) (emphasis supplied). Raitport’s assertion that this court is bound to apply the invalidated Solicited Fax Rule unless and until it is also invalidated by either the Court of Appeals for the First Circuit (by way of an administrative appeal, pursuant to 28 U.S.C. § 2344), or the Supreme Court of the United States, is without legal merit.