hear argument first this morning in case seventeen seventeen o five b t r network versus carlton and here is chiropractic mr phillips thank you mr chief justice and may please the court the most startling comment in the four circuits opinion in this case is the following one we need not harmonize the f c c is rule with the underlying statute i would have thought and any ordinary instance of judicial review of administrative agency decision making that's a statement that ought to leap out off the page and when it's being applied in the context of a private right of action brought as a class action by private plaintiffs against a private defendant who is seeking to assert that the statute is not violated by the action of the defendant the idea that the court of appeals will say no no there is no opportunity and no reason for the courts to entertain the agency's standard to be applied in those circumstances was one but it would seem to me you could only justify  jurisdiction and i think that to secure sixteen has to mean something and that it then to simply become a matter of jurisdiction it becomes a matter of how much if any deference this interpretation is due then the question we granted certainly which is what does the district court what tend the district court to as opposed to the court of appeals so the hear of the district and live at the statute candidly well but yes i agree with you it's unsure pretty but that's what applied challenges are about aren't they there hears the statutes hears the interpretation your facts are unique and we now as judges decide whether or not that uniqueness falls within or without the interpretive guideline or the  normal process there are two things that come out of that question that i'd like to address the first one is what is the work that's done by the requirement of exclusive jurisdiction in the hobbs act and we would say that the exclusive jurisdiction  court of appeals can decide whether and only you know whether they can join set aside suspendin i don't accept that that the court of appeals has exclusive jurisdiction period and we have plenty of statutes that give courts of appeals exclusive jurisdiction over matters so if you're not challenging the validity of the how do you and you accept it on its face what happens well accepted on its face the course with a different interprets right i guess that's the problem is it's difficult for me to sort of sweep away what does it mean to determine the little let's assume we just accept where administrative final order do you lose well because i think if you are relying on the acas to get to that proposition it's hard to do that without taking into account the specific provision that quote no court federal state or territorial shall have jurisdiction or power to consider the validity of any such regulation and it was the coupled with language that that makes you act this what it is doesn't answer the difficult part of your argument is the question of reliance by parties that participated in the will making activity so suppose here that p b r had been a party and it said it it  position it said the f c c should say that the statute applies only if the facts directly propose a commercial transaction in the f c c you agreed on that and then p b r get sued just as it was here  then the normal stoppel rules would apply you had the opportunity you participated in the proceedings to stop all cases like port of austin and other cases say when you know when you have a full fair opportunity to litigate and you lose then it's tough luck when when the issue comes back up if you're in the situation the p d are is where you were never engaged in any of the behavior that would be implicate this case or implicate this regulation or order and then you find out ten years later what's that it was suppose it wasn't a party so but it it was aware of what was going on the same situation i same result i think so if you're talking about where in the sense of i mean the problem is even if they were aware of it but they still weren't sending the agency and i would think this court's article three cases would require you to be at least somewhat adversely affected but another always you have no injury that if they were carrying out that kind of activity if they were sending out faxes at that time would that be enough  i think that's difficult and that circumstance because i don't think the court has historically said and animal wrecking and justice paul's opinion suggests that it doesn't put that kind of a burden on the average individual to try to sort out all the federal regulations and try to figure out exactly what happens i think it's made even more complicated in a case like this one where the f c c is ultimately order doesn't follow from a specific notice to the public that what we're going to do is thought that that should and that regulation were in harmony and that p d i didn't violate either right and that's i mean that's part of the problem here is you don't know what the statute means or what the regulation and what effect it has until you get into litigation and so if you adopt the rule to skegness is if you just generally aware of the problem what you're doing is saying what we want to invite is premature challenges to agency decision making when we don't have any concrete injury at all but because there's a risk at some point we're engaged in some kind of behavior that might trigger this we are otherwise barred for all time i mean that is a stop on steroids i'm is an extraordinarily convoluted process where you are asking for something to be reopened that's already been decided by the by the commission and where the commission has absolute discretion to grab or deny it will and on its own time frame well is that what congress intended i mean to the extent you have the argument that you want a decision that's applicable both throughout the heavily regulated industry i mean that may be exactly what they want to do whether it was only once or if they wanted to allow you to raise it again in the subsequent time i think it makes much more sense to think of the hobbs act as saying to the world look you if you're directly affected by agency action and most of the cases on the hobs like most of those agencies you write are heavily regulated and they follow very carefully what happens and if they think they're being adversely affected they run to court immediately and they seek some form of injunctive relief or equitable relief or declaratory relief in order to stop an order and allow them to go forward why if you think you're not doing anything wrong i know the chief mentioned a motion for reconsider consideration but much easier is a motion for declaratory judgment and you go to the agency and you say in fact is what we did well oh we don't think we for it because we believed that the district know what you believe but if you were wrong shouldn't you have well with the benefit of hindsight i suppose you could say that but at the at the time of the litigation we're faced with this question of if there's i don't think there's a due process violation because you have access to the agency and to getting a response if you take the proper steps what happens to your argument then i think i don't think there's a  whether two issues it's two parts of that there's still a very serious to my mind separation of powers argument that says that you have a case that's within the jurisdiction of the district court properly before it and the district court is not is not allowed to decide what the right outcome is if if congress intended for that i would expect congress to be much clearer that that's its intention would have followed the yakkers model rather than the i c c model or the f t c model  second time you've said that there's a real difference between the access model and this and i take it you're referring to the kind of second provision which says no courts shall consider yeah but that's once you have the word exclusive in the first provision a second provision that says no other court shall hear in this kind of case is redundant isn't it you know i don't need it now i think as long as you say this court has exclusive jurisdiction why would you need a separate provision saying no other courts have jurisdiction because there's a big difference between having jurisdiction to decide in the first instance whether or not to enjoin set aside clear and valid the rule of an agency and what happens when an enforcement action  broad and we know from the administrative procedure act at the strong presumption is in favor allowing you to defend against the regulation or order in an foresman action and therefore congress has to mean explicitly that they want something different under those circumstances and what i would tell you is that i if we were if if you act as have been a doctor here my position would obviously be a heck of a lot more difficult and then i'd only be arguing well that was a national emergency in this isn't but that's not the language of the court that the congress adopted and what what the fourth circuit said i can sense it doesn't work here and if you're just seems to me it is the language that congress adopted with the exception of removing a completely redundant provision once you say court x has exclusive jurisdiction you don't need another provision saying court why doesn't have jurisdiction it's implicit in the first statement if if congress had not already adopted  the rule that says you have you know you have both and this court hadn't said because you have both that is the basis on which there is this the stoppel operates against this defendant and in a criminal action that be one thing but that's that's how the statute was interpreted with that second provision in it congress then comes back and adopts a truncated version of that doesn't say that it wants to go to the aca swirled truncated but with the word exclusive on it four i'm sorry you're on the statute subsequently in the hobbs act and twenty three forty nine specifically talks about judgments for declaratory really the first sentences determine the validity the second says consider the validity do you see any difference in those two phrases i think the use of consider the validity is extraordinarily broad and says to those courts stay out of this business and done for good reason we were this was right after pearl harbor there was regulation and in effect there was a need for the kind of consistency and nationwide decision making was the chief justice you talked about most of these are fine if what you're talking about is creating problems for regulated entities who monitor it and bring their actions and try to stop it but when that doesn't happen and the agency goes beyond that and adopts interpretations should there's nothing in the object which is just an ordinary judicial review statute that should divest the district court of the authority to decide the question on the basis of the statute and it's intimidation of the rest of us you've emphasized a difference in the statutory language i wonder whether there are a couple other distinctions that you might comment on and maybe there's a reason why you're not pursuing it and that's the reason for my question one is this the separation of powers difference that there was a wartime measure and the executive had arguably some inherent authority in the and one of the elements is a violation of the agency's price control regulation and there you really are challenging the validity of that regulation if you're challenging the government's indictment whereas here as i understand it the regulation doesn't disappear tomorrow and it isn't declared invalid in any meaningful sense so those are distinctions i had understood to exist but i'm not here you argue the matter i'm wondering why i tried to make  separation of powers point earlier because i do believe you did it you did try a great u s o i mean and i do think you have to interpret the hobbs act in light of the of the extraordinary separation of powers problem that you create by over expansive  has rule with the statute we can impose liability on someone under a rule that set and slave usually have to follow the rules set by the f c c think even the government agrees that a court can interpret a regulation so  you might be quite right about that but on your broader point why is it a separation of powers problem to say of course a court has to determine what the law is but it doesn't have to be every court every time that determines what the law is it can be a particular court the court of appeals at a particular time sixty days after an agency action whether it's the initial agency action or as the district c circuit does a petition for a new agency action but why is that a separation of powers problem to limit the court and to limit the timing really in order to ensure uniformity and to ensure that the government is in the room when the determination about the regulation takes place well and because i think a part of the normal rule should be in any situation in which you are being sued for violating a statute and you are seeking to defend on the basis that you didn't violate the statute and they're being told no you did violate the statute because there's a regulation and that regulation is not something you're entitle to challenge you would ask is is that a situation that seems like a separation of powers problem to me because district courts are in the business of dictating what the law is not being slavish fully adherent to the but  but the problem here is that what you're challenging is not the question present the district or look at your argument and board it and say we're not challenging your right this doesn't violate either the statute or the interpreted through that the agency gave it it was the court of appeals who read the interpret rule differently so it appears as if your challenge is really not to the jurisdiction of the court of appeals because everybody knows it has jurisdiction either as an appeal from the district court or under the that the court rewrote came up the way it did was you have an ordinary situation where this record does exactly what you would want to district court to do which is to figure out what the statute means and why the interpretation of the agency and then you have this extraordinary statement made by the court of appeals which says no we're going to reverse that and we're going to reverse that because district court had no business getting into that into that inquiry to begin with that seems to me offensive to core notions of separation of powers if caught i'm sorry there are statutes that explicitly preclude judicial review in unfortunate proceedings however like the clean air act or those unconstitutional probably not under the circumstances and if they're not unconstitutional and that's you don't really have a separation of powers ar have more an argument about what we should do with a statute that silent about the whether or judicial reviews available in the enforcement proceeding some statute means hardest it i mean the point that the reason why it's hard for me to tell you in the abstract whether the environmental statutes are constitutional or not constitutional is they have different language than the statute here and certainly different language in the court and where you don't yeah to speed well you don't dispute that those statutes preclude some some deals in some circumstances was just pressing the broader how far you were going to press the broader point on separation of powers right there some statutes that explicitly preserve judicial review some statutes that explicitly bar the judicial review in the enforcement proceedings and then we're in the gray area where it's silent right right but i'd and i would and i would construe the silence here in favor of saying we ought to have judicial review but it but it is some ways it goes back to justice course which is question and it's part of my problem with the e p a i can envision circumstances where it would be unconstitutional as a separation of powers because one of the things the aca is tells us is that the executive does have some authority here we're talking about emergencies and i don't know exactly the circumstances in which congress decided to limit the authority to review those issues and how aggressive that's interpreted in various circumstances and i and again of course there's a good process to be just right on the question of this to be very elementary in which case regulations and orders but not those of the f c c it doesn't have it in that section then if you look up final order if you look it up in if you look up order in the a p a it refers to a final decision a final comes from the review part over then rule making how does he hear we have how is that supposed to work is it everybody knows that i have another final  obvious question to which you can tell me both and that is what happens a lot of rules are these are my only two questions i'm going to ask i want her in order what  the other one is look there are a lot of room making normally you review in the court of appeals there are all kinds of things that so what happens to a person who wasn't born yet or what happens to a business that wasn't formed yet there must be law on that this can't be the first you know here they were by the way but i mean how do we work it in the normal case so those are my two questions you've got them both i've got them both let me take them and the opposite order and i think the answer to the second it's a very deep and fundamental due process problem if you've never had an opportunity to obtain review of the agency's decision making never could have the idea that you are subsequently barred under the surface right right so there must be a holding on that there's a lot of water under that bridge in terms of things that have been reviewed that way but the reality is and i do think that the f c c is method of decision making here is one that's reasonably called into question because there are some very specific rules that were adopted as part of this order and there was very specific notice and comment as to those and none of that went to the part of the order that now is being used or asserted against my client as absolutely binding and without any opportunity for judicial review what about your was your client around at the time they were but they were you so what about a rule that says i'm sorry people who are around have to come and challenge it in the court of appeals when it's first promulgated or ninety days thereafter what's wrong with that the problem with that is one if you haven't been adversely affected by it you have no injury in fact you can't go to an article three court and complain about it under those circumstances it's just begun may i ask if you would just talk a little bit about the argument i think it's at the end of your brief that this  really an interpretive rule and whatever is true of any other rules interpretive rules are different and then to also tell me why you think that's not waived and then to also tell me why you think your main argument is not waived  the main argument is not waived because the court specifically said it did not have to harmonize the interpretation of the c c with the statute under these cases and that's art that's the core of our me a lot of your time but but the point of course is in you i can read a bunch of stuff and i don't want to do that is is there a bunch of times where you said in the district court and then in your petition that you were not arguing that  that if you interpret the statute in the regulation and laid against our conduct there was nothing wrong and therefore no basis for liability it was when the fourth circuit said you can't look at that at all or take in into account that's when we started to complain and then this court said does the hobbs act deprive the district court of the authority to do that is precisely raised by that holding of the fourth circuit and this particular case on the interpretive rule point again the question you asked is does the prevent this we answered that question moodley this issue was not raised before but that's the question you posed and we felt an obligation to give you a full answer to that question if if you had simply granted the petition i doubt we would have made that last argument it's the circuit court can both look at whether the interpretive rule is right under the statute yes that's absolutely correct or wrong do you think that was adequately briefed here in this court yes absolutely thank you chief justice and may please the court when a district court refuses to accept a final order of the f c c interpret in the way on the basis that it's inconsistent with the statute that court is determining the validity of the statute that's exactly right justice ginsburg the district court in this case interpreted the two thousand and six rule to mean what p d are says it means and then that ruling was reversed by the fourth circuit court of appeals the fourth circuit held paragraph fifty two of the two thousand and six order creates a per se rule that a fax offering for goods or services is an advertisement as as we advocated for now having lost on its interpretive argument p d our says it wants to do something that it never said it wanted to do before and now it doesn't want to challenge the validity of the two thousand and six order and it's at it's are going to this court because the question presented was so broad it's it's raising arguments that it either forfeited below expressly like the argument that it wants to challenge the validity of very basic human someone who is going to be subject to enforcement be seen as a right to notice and an opportunity to be on the issue that way this thing came up federal register and that constitutes constructive notice to the whole world you know we're also assuming that p d are was not sending faxes offering free copies of it's hard copy p d our book in two thousand and six i'm not sure that government one hundred dollars every year all right and a young man is born after the regulation is adopted and he didn't he didn't read the federal register shocking huh maybe a lot of people don't read the federal register maybe they can't read it it's an eight point font at any rate this young man is for ever barred i think under your interpretation about a federal district court justice here that would be barred from determining the validity of that or right yes it would and the party would first need to go to the agency and you would have had have been born earlier and then if you lose their you petition to the court of appeals which can determine the validity of the order but the amount of deference you give to an agency in deciding whether they should begin a proceeding is enormous i mean compared to anything else so you say to somebody oh oh go petition the agency ask him to change it i mean maybe you'll tell me i'm wrong about this but i always thought if they say no it's the virtually nothing that you can do about it in court which is quite different after they have a rule and after they have a rule well you can say it's outside the statute so it's the same question that's been asked what about people and it's not just being born later is as was pointed out by your call he over here it could be a book he wasn't in that business the business wasn't formed the business was formed but it was in certain aspects that he isn't a person aggrieved ok so there are a lot of the i can't believe there's no law on this is there no law this is been going on for years and years and years it's never then i read the statute and it says final orders of the f c c and orders have a meaning in the a p a other than rule making and there is another part of the statute that deals with rule making but it isn't listed definition of order is something other than a rule making i have to admit i'm not familiar with it when i read it you if you'd like it says a rule at the beginning of the a p a means the whole or part of an agency statement of general rule wrong place when you have this business about while when the district court is applying that you can go petition the agency for reconsideration and then if the agency says no then you can go to the court of appeals is what's before the court appeal simply the question of whether they should reconsider it or the underlying merits of the interpretation of the underlying merits of the interpretation i provided an example in of our brief because i just went through this as counsel in a hobbs act appeal like that brought by a group to the underlying merits i think you would have to consider if you had an argument that we had not been decided before i think it would have to consider the challenge to the statutory authority for the agency through role is it any different standard used  the d c circuit when it comes up like that it's chevron deference but if there is there any difference between getting to the d c circuit on that kind of petition and it getting to the d c circuit if you could challenge the ru ad law you try to sort of know and so you have a major question it seems to me of administrative law that applies major and we also have parts of this involving the statute that i personally maybe everyone else does don't understand both statutes the order port and the other part so what should we do if there's a general view the same as mine well your honor as you said nobody did argue t r didn't challenge that in its petition to this court even accepting that though why is this determining the validity of that order because the order stands today as well as it did yesterday the courts simply interpret the statute in a manner that may be different than the agency but that's what courts do and agencies are in their prosecutorial efforts aloud interpret statutes normally as well and sometimes interpret them differently than courts that's the separation of powers so that interpretation still stands it's still the government's opinion letter on the subject it is an indeterminate invalid in the sense under the a p a was we as we normally think for lack of notice and comment that order is vacated or something like that so what's wrong with that and just add on to that the a cause problem why doesn't that also distinguish it from a case because the of course to challenge the criminal indictment you had to argue that the that the regulation was invalid and that is ineffectual i have two main responses t act the plain meaning of those words exclusive jurisdiction to determine the validity of to determine is to decide and to the validity of something is to determine if it's legally sound or not in a district court is being asked to do that when it's with no court has ever it invalidated this case i think this would be decided the same way today and not in war time let's say that congress once again sets up an agency to set all sorts of prices on goods that it believes fall that goods affecting commerce and the agency sets prices for home grown tomatoes maximum prices for home grown tomatoes and somebody raises heirloom tomatoes in the backyard and charges more than the specified price and there's a criminal penalty so that person is charged with the crime of selling tomatoes at a price that was over the limit you think that person would be prohibited from challenging the regulation in the criminal prosecution under this is still good law now i do have to point out th congress ameliorated the harsh attacks of but you think that would be consistent with due process and you would say to the person he was growing these tomatoes in the backyard well you know you should have kept up with the federal register well to the person growing the tomatoes in the backyard that would present a more difficult case than the meat wholesaler who presumably followed those were ok so where do you draw the line you say it's a more difficult case but you're not willing to say that that would be a violation of due process that's correct and we don't have to go as far as jaco's in this case because as we pointed out p d our had other options available to it other than taking a petition in two thousand you know how many pages were issued in the federal register and twenty eighteen i do not think it's something like ninety thousand pages right but somebody in twenty thirty i once worked with i once saw somebody writing home on the metro a big night in washington d c reading but code of federal like regulations and i thought only in washington d c did you see this site that you think people in other parts of the country or they're waiting for the latest edition dish into the code of federal regulations yeah i didn't suggest that p d i should combing through every issue of the federal register but i do think they should have consulted a lawyer before sending their ballots in twenty thousand isn't the question here how to interpret statutory silence because we have statutes that have preen for review and then explicitly allow review in the enforcement proceeding we have statutes that allow pre enforcement review and explicitly bar review in the enforcement proceeding clean air act and here the statute silent and the question is what's the default rule should be and to justice alito is point given the due process considerations to justice briar's point why the absence of law on this the absence of law i think is because judicial reviews always been assumed in and for some of the proceedings unless it's explicitly bar that's why there's an absence of law i believe in this instance and to your point about well they can go through this other convoluted method of motion for reconsideration if you're going to allow that why not just allow the review in the enforcement proceeding and and have a more efficient process so that's the considerations that i wanted to raise for how we should fill the statutory silence but first i don't think the act is silent and i think that the grant of exclusive jurisdiction to make those determinations in the circuit court it doesn't say anything close to what the clean air act says for barring review and enforcement proceedings it doesn't have the second clause i don't think it's necessary those two accomplish the same thing using different language as to the the last point your honor raised just as cavanagh one of the reasons why it has to go through the hobbs act process and it's a reason that this court recognized in the court of boston case is that under those circumstances the attorney general is present there to represent the interests of the government and it has to go through a centralized appeal process we don't have state courts and district courts across the country deciding telecommunications policy it goes to one court of appeals where the government is present and knows about and that's why i never mind chief justice and may it please the court just poor areas i want to cover the first since this is really a statutory interpretation case is the text of the statute the second hard cases like justice priories like a party that's not in existence and how they work on our view the third is this issue of final orders that justice pryor and some other folks also raised and the fourth is justice ginsburg's question about maybe whether whether this was an ambiguous regulation and what happens then i'm so turning to the text of the statute there are two key words  phrases the first is exclusive and the next is determine the validity and i just want to focus on exclusive and i think it goes to justice kavanagh's recent question and some others and we think the plain meaning of exclusive as just three on dealing with that question which is sort of i think the overarching text on what that word means and exclusive is the word that a p a section or three uses for the kind of statute that's going to cut off review in civil and criminal  so that's right justice ginsburg so somebody asked the agency to clarify that issue a ruling on whether this was going to apply to essential publications of the sir that are at issue here so publications that offer and start faxes that offer free or services were factions that promote medicine so their parties asked and it was published in the federal register you know we the agency want your comments on what role we should adopt with respect to that and then the agency adopted a  rule governing that and maybe i should turn now to you know the question that you asked about wall what if the rule is not clear and we absolutely agree justice ginsburg that if there's ambiguity in the rule parties are absolutely free to argue about what the rule means to argue that  interpretation should be adopted and to reference the statutory text i think it's really important that this case comes to the court with the court having expressly declined to take up at the second question presented which was was the fourth circuit right that this rule is playing do you have a view on whether the rule is interpretive or legislative we don't think that's the right question you know i think if the if the issue is does this rule have force an effect of law and we think the answer is yes well i'm assuming that an interpretive rule does not have force  effect of law that's what makes it an interpretive rule or maybe it goes the other way but that's that's one of the characteristics fair enough so we think in order to be a final order it has to satisfy and i think you can look to poor boston for this basically the final pointed out it says the judicial review does rule in agency action which is very broad is subject to judicial review in civil or criminal proceedings unless prior adequate would say here there is that's right you are but it doesn't say that in your brief yes so we agree in our brief that section of three and the statute have to be read in part materia is a we agree if there is no prior adequate as did the court they are going to whether they have a case we don't know whether they had an adequate opportunity to raise it in the in the hobbs acted in the in the your admission rule making percey we don't know if it's a rule making legislative or r making interpretive and there are various other things brought up that we don't know so what is your advice about whether we should decide a major question in the face of those uncertaint it would certainly be a different case and then the question would be and just case that would come out differently not that it would of course it would be a different case would it come out differently so that would present a difficult question and or seven or three on which we haven't taken a position and the reason is of course this is implicated in a lot of you know the clean clean air act clean water act a lot of these provisions cut off review and i think you know so we would have to address the question of when section seven or three says you know does an adequate opportunity exist is it talking about an adequate opportunity for you a particular individual party or adequate opportunity for others in your shoes i think we might well argue in a case that really presented that question where somebody could say i didn't exist we might well say it was nonetheless out of to be a much harder question and here i don't think there's any serious question that and you're saying that this was never raised by any party by any court below that the exploration of that question petitioner certainly never argued we didn't have an opportunity they just argue below this isn't determining the validity of similarly on this question of interpretive because i would say that if it's an interpretive royal by which i mean something without without the force of law essentially guidance to the agency guidance to various parties who are interested in the world but you can't you can't you know say that somebody violet violated it and sanction them something like that doesn't fall within the hobs absolute all to do you would you agree with that i think i would just as we think it has to be  an action about which rights are obligations have been determined and what are they and we don't know really because nobody argued below whether that's true is that correct nobody contested below that this was an order that subjective hobbs but you think it does have the force and effect of  all we think it does mean that is adopted so you in your brief you also say that the general rule is that want to defend its liability depends in part on the propriety of an agency action that action ordinarily can be challenged in a civil or criminal enforcement suit that's the general rule and the question here is whether to read that exclusive to determine the validity to deviate from the general rule given the due process concerns and given that congress can be more explicit it has as it has in the clean air why should we stick with what you call the general rule and read the exclusive to determine the validity to mean declaratory judgment actions well i would really take issue with the idea that those other statutes are more explicit when they use different words but exclusive jurisdiction is i think quite clear language and it's the language well but then you didn't start interrupted even the statute issuing yakkers had a second sentence and the court did not rely on the first sentence alone but specifically said the first  point to that word exclusive but there are more words after that exclusive to do what yes so and determine the validity of the language that we have here and we don't have more than that we don't have the second sense of the access which you pointed out is different  and why why shouldn't we given the presumption of judicial review and statutory canon that we normally look at statutory terms in the light of their neighbors and here all of the neighbors indicate a decision by a court that would actually hold the regulation to be nil and void and that didn't happen here your regulation still exists today and the executive agencies can follow it for guidance why wouldn't we determine the validity of mean mean kind of what it says oh let me let me talk about the language and then about the court's precedent i think that they both are sort of contradict that understanding i think every quarter appeals has a right to say that you determine the validity of a regulation when you decline to apply it on the it is a lovely opinion letter by the federal government and the agencies may choose to follow it but it's not deterring the validity of in a normal sense any more than we normally read the federal register for breakfast well i think it is you honor and if you look to the entirety of the two c p a it says you know first here's the substantive we're prohibition and second the agency may make rules to implement that provision and so here a party came before the court and said here is the rule that the agency has made about what unsolicited advertisement means if the court declines to follow it it has to do it for a reason and the reason here is it's saying the rule is substantively invalid and even if you don't agree with me i think you know in the first instance about the reading of the second three language just direct the court cases that apply that language and this court has repeatedly applied the statutory language both here and in predecessor statutes where somebody was coming into court and saying please decide the underlying merits of this legal question and the court said what you're asking us to do legislative rule or an interpretive rule let's put all of that aside the u s comes in starts an enforcement action in the district court ken you're saying to me the district court can't decide the validity petition so we think those those so you disagree with respondents on that point because respondents seem to suggest that once it got to the court of appeals that court had the power to decide whether i yes i don't think that's right and i don't think any court of appeals has understood it that way i think you have to comply with the hobbs act or procedures to get review in the court of appeals and if i could just turn to one of justice briar's other questions about the nature of this particular order and it being a rule i and the other side's or you will just give us a judicial review of the enforcement action why go through all the hurdles of the former if it's just going to be judicial review in the end one way or the other sure and or is there something different about the judicial review in the former which i think right be lurking yes so i think two two things for me personally address why we think it's better and second let me address the nature of their your view so we think judicial read that's accomplished through the hobbs act is far preferable and it's because the united states gets to be a party if it's from a rule making you're going to have the opportunity for other affected parties to participate to come in to explain why they think their will should or shouldn't be changed you can't have a single nationwide proceeding that's going to set the rules for the entire nation and we think these kinds of rules subject the hijacker areas where congress thought that was really important i do want to address the question of what the scope of the review is so i think what typically happens in these cases in respondent cites a number of examples is somebody goes before the agency and asked for a deck declaratory judgment about you know what the scope of the rule is or asked to change the rule the agency says something about the merits and then that gets appealed to the court of appeals then obviously you do get forward view of the merits of the underlying rule i do think it's a different case if the agency were to say you know we declined to reconsider at all and then i do think you that and that happens quite a bit as you well know that in that case you'd be you'd be out in that case no you don't acquiesce you could be subject to millions and liability without ever having an opportunity to say that the rule is illegal even if the rule everyone's thinks is that we go you still get no opportunity and that you so i think you would have an argument under section seven zero three that the petitioner here really doesn't have that i didn't have a meaningful opportunity to  you there so if you go for the petition for reconsideration and the agency says actually just as an exercise of discretion we're not going to do that that would mean that it was inadequate no i think so i think the petitioner a person of petitioners if i may just briefly answer a person under those circumstances the courts review the distinct agency action resulting from the new position it is only in very odd circumstances where the court actually has as any kind of an opportunity to take up the underlying question of the validity or the or of the relationship between the underlying statute and the old rule and therefore it's not a prize and adequate remedy that gives you the basis for has gotten it in functional music and weaver it's basically taken in contrary position to your in both of those cases they look to the validity of the rule underlying no no of course metaxa or one else and of course men actually the other one is right well that i mean functional music is clearly in our favor in terms of its approach to these kinds of issues because functional music even so we're not even sure whether or not this could have been raised in the first instance by these parties but we're not going to worry about it we're going to take it up as an enforcement matter and we're going to at evaluated under those circumstances what it goes to just as prior as reason why even though there may be larger and bro questions that are embedded in this case but at the end of the day with the fourth circuit said it is that the district court was not permitted they had no need to and could not harmonize the interpretation put forth by the f c c with the underlying liability provision of the telephone communication protection act that issue warrants this court's review is there a circumstance where that happens where we know it's just cavanaugh said several times when there is absolute silence the presumption