The Eighth Circuit in Nack v. Walburg, Case No. 11-1460 (8th Cir. May 21, 2012), issued an opinion in which the court raised the specter of constitutionality issues in TCPA class actions.

The Eighth Circuit ultimately did not decide those key issues, asserting that the defenses raised were challenges to the FCC’s regulations, which must first be raised before the agency pursuant to the Hobbs Act.

Following the ruling, on October 15, 2013, Defendant Walburg petitioned for a writ of certiorari.   In his petition, Walburg stated the question presented as “whether the Hobbs Act prohibits a defendant from raising the invalidity of an FCC regulation when that regulation forms the basis of a class action brought by a private party seeking crippling monetary damages.”  Walburg cited the circuit split between the Eight Circuit’s interpretation of the Hobbs Act and the Sixth Circuit’s interpretation as stated in Leyse v. Clear Channel Broadcasting, Inc., 697 F.3d 360 (6th Cir. 2012) as justification for the U.S. Supreme Court to grant certiorari.

Three separate groups filed amicus briefs in support of the request for certiorari.  Despite these briefs, the Supreme Court, on March 24, 2014, denied the petition.   See United States Supreme Court Docket No. 13-486.

Walburg still has a petition pending before the FCC, that he filed in August 2013 seeking review of the regulation related to the requirement of opt-out language for facsimiles.