The US Supreme Court on Thursday unanimously vacated and remanded a decision from the Court of Appeals for the Fourth Circuit, sidestepping a determination about whether a 2006 Federal Communications Commission (FCC) order and other such agency orders bind lower courts.

The case revolved around a faxed advertisement sent by PDR Network, a healthcare communications company, which offered a free reference e-book to physicians. Although the court found that this fax qualified as an “unsolicited advertisement” under the Hobbs Act, the court also found that the lower court had not yet thoroughly considered the FCC’s 2006 order that defined “unsolicited advertisement” under the Telephone Consumer Protection Act.

The opinion questioned the legal nature of the FCC order, asking whether it was equivalent to a legislative rule bearing the force of law or if it was instead equivalent to an interpretive rule that advises based on the construction of statutes. The answer would determine the binding effect of the agency order.

Additionally, the court asked whether PDR had “‘prior’ and ‘adequate’ opportunity to seek judicial review” of the order, as defined by the Hobbs Act’s exclusive-review provision. Certain challenges to final orders need to be brought to the appeals court within 60 days of the order’s entry. If there was a lack of opportunity, PDR may be able to challenge the order under the Administrative Procedure Act.

Because the Supreme Court is “a court of ‘review,’ not of ‘first review’…. [the Court] remand[ed] this case so that the Court of Appeals for the Fourth Circuit may consider these preliminary issues.”