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09-3172 CE Design, Ltd., v. Prism Business Media, Inc.

By: dmc-admin//May 31, 2010//

09-3172 CE Design, Ltd., v. Prism Business Media, Inc.

By: dmc-admin//May 31, 2010//

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The Hobbs Act bars district courts from reviewing the validity of FCC regulations.

"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 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 designed 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."

Affirmed.

09-3172 CE Design, Ltd., v. Prism Business Media, Inc.

Appeal from the United States District Court for the Northern District of Illinois, Pallmeyer, J., Evans, J.

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