In 2024, the Federal Communications Commission (FCC) issued fines to four major telecommunications carriers—Verizon, AT&T, Sprint, and T-Mobile—for allegedly failing to protect the geolocation data of their subscribers, which the FCC claimed violated its Customer Proprietary Network Information (“CPNI”) rules. To challenge the action, all four carriers had to first pay the fines, which they did. They then petitioned for review of the FCC’s decision in various U.S. courts of appeals, arguing that the FCC’s procedure for adjudicating monetary fines violated their right to a jury trial as guaranteed by the Seventh Amendment. Verizon sought relief in the Second Circuit, T-Mobile (which had merged with Sprint) sought relief in the D.C. Circuit, and AT&T sought relief in the Fifth Circuit.
The Second Circuit and the D.C. Circuit held in favor of the FCC, rejecting the carriers’ argument that the FCC violated their Seventh Amendment rights. But the Fifth Circuit reached a different conclusion, holding that the FCC’s procedure did in fact violate AT&T’s right to a jury trial. The FCC (which lost in the Fifth Circuit) and Verizon (which lost in the Second Circuit) each has filed a petition for certiorari at the Supreme Court.
With a 2-1 federal circuit split and two certiorari petitions pending, some are predicting that there is a good chance that the Supreme Court will decide to consider the appeals. The dispute raises a fundamental question about the FCC’s authority to impose monetary penalties through its in-house administrative enforcement procedures. If the Supreme Court grants certiorari, it will be called upon to determine whether the Communications Act violates the Seventh Amendment by authorizing the FCC to order the payment of monetary penalties for violations of the Act, without guaranteeing the right to a jury trial. The resolution of this dispute thus could have significant implications for how the FCC enforces the law against telecommunications carriers and other entities subject to its jurisdiction.
Both petitions for certiorari have been distributed for a January 9, 2026 conference.
I. The FCC’s CPNI Rules and Enforcement and Appeal Options
Section 222 of the Communications Act of 1934 imposes on telecommunications carriers the duty to protect the privacy and security of customers’ personal calling and service information, known as CPNI.[1] The Act defines CPNI as information relating to “the quantity, technical configuration, type, destination, location, and amount of use of a telecommunications service” that is “made available solely…by virtue of the carrier-customer relationship.”[2]
To implement Section 222, the FCC promulgated regulations—known as the CPNI Rules—that require carriers to take “reasonable measures to discover and protect against attempts to gain unauthorized access to CPNI.”[3] Carriers also must obtain affirmative, opt-in consent prior to disclosing a customer’s CPNI to third parties.[4] Congress authorized the FCC to enforce Section 222 and the CPNI Rules by imposing monetary forfeitures in administrative proceedings.[5]
The Act permits the FCC to impose inflation-adjusted monetary penalties, subject to a statutory maximum.[6] The FCC has discretion to determine the amount of a forfeiture based on “the nature, circumstances, extent, and gravity of the violation,” as well as “the degree of culpability, any history of prior offenses, ability to pay, and such other matters as justice may require.”[7]
When imposing monetary penalties, the FCC can proceed by formal adjudication before an Administrative Law Judge (ALJ) or before the Commission itself.[8] After a formal adjudication, a carrier can seek review of the forfeiture order in a U.S. court of appeals. Alternatively, the FCC can issue a written Notice of Apparent Liability (NAL) and provide the carrier an opportunity to submit a written response.[9] The FCC then decides whether to affirm its notice by issuing a Forfeiture Order.
If the FCC issues a Forfeiture Order, the carrier has two options: (1) pay the fine in full and petition for review within 60 days in a U.S. court of appeals under the Hobbs Act,[10] or (2) refuse to pay the penalty and wait to see if the U.S. Department of Justice (DOJ) chooses to enforce the Commission’s Forfeiture Order by filing a civil suit in district court to collect within five years of the issuance of the Forfeiture Order.[11]
Under the first option, the court of appeals will review the FCC’s decision to issue a Forfeiture Order under the Administrative Procedure Act’s (APA) arbitrary and capricious standard.[12] Under this standard, the court will set aside the Commission’s decision only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”[13] Under the second option, if the DOJ files suit in a district court, then the defendant carrier is entitled to a jury trial de novo.[14] This bifurcated system lies at the center of the Seventh Amendment debate at issue.
II. The FCC Fines and the Circuit Split
In 2020, the FCC issued NALs against each of AT&T, Sprint, T-Mobile, and Verizon for allegedly violating section 222 of the Communications Act and section 64.2010 of the FCC’s rules governing CPNI. In all cases, the FCC alleged that the carrier failed to put in place reasonable protections to prevent unauthorized access to the location information of their subscribers, thereby violating Section 222 of the Act and the CPNI rules.
In response, each of the carriers argued that location information is not CPNI, and therefore is not subject to the Communications Act or the CPNI Rules.[15] They based this argument on the fact that the data at issue was device-location data, rather than call-location data. According to the carriers, only call-location information falls within the scope of section 222 and the scope of the “carrier-customer relationship” in § 222(h)(1)(A) is limited to common-carrier services. The FCC reviewed each carriers’ written response, but nevertheless assessed forfeiture penalties against them. The carriers paid the penalties, and each appealed the FCC’s decision to different U.S. courts of appeals. The D.C. Circuit (to which T-Mobile/Sprint appealed) and the Second Circuit (to which Verizon appealed) held that paying the penalty waived the carriers’ right to a jury trial. The Fifth Circuit (to which AT&T appealed) disagreed, holding that the possibility of a later jury trial does not cure the constitutional violation.
D.C. Circuit. T-Mobile and Sprint filed for review in the U.S. Court of Appeals for the D.C. Circuit. The court denied their petitions, holding that the FCC’s enforcement procedure did not violate the carriers’ Seventh Amendment right to a jury trial. After finding that the location data met the statutory definition of CPNI, the court concluded that “the statutory procedure at issue allowed the [c]arriers to obtain a jury trial before suffering any legal consequences.”[16] In other words, because the carriers chose to pay the fines and file petitions for review rather than wait for collection enforcement, they waived their right to a jury trial.
Second Circuit. Verizon filed its petition for review in the U.S. Court of Appeals for the Second Circuit. Like the D.C. Circuit, which reached its conclusion just one month earlier, the Second Circuit denied Verizon’s petition for review and upheld the FCC’s fine. The court determined that “[t]he customer data at issue plainly qualifies as customer proprietary network information, triggering the Communication Act’s privacy protections.”[17] The court then rejected Verizon’s argument that the FCC’s section 503(b)(4) enforcement procedure for imposing forfeiture orders constituted a violation of Verizon’s Seventh Amendment rights. According to the court, Verizon had chosen to forgo its opportunity to have a jury trial by paying the fine and then filing a petition for review; thus, there was no Seventh Amendment violation.
The Second Circuit distinguished the case from SEC v. Jarkesy, the 2024 Supreme Court case in which the Court held that the SEC’s in-house adjudication of civil penalties violated the Seventh Amendment right to a jury trial.[18] In Jarkesy, the Court concluded that the Securities and Exchange Commission (SEC) violated the Seventh Amendment when adjudicating securities fraud claims by seeking civil penalties before ALJs rather than before a jury in federal court.[19] The Court held “[w]hen the SEC seeks civil penalties against a defendant for securities fraud, the Seventh Amendment entitles the defendant to a jury trial.”[20] The Second Circuit distinguished the case before it from Jarksey, reasoning that the FCC’s enforcement procedure differs from the SEC’s because the FCC’s forfeiture scheme does not compel payment; instead, it requires a separate DOJ lawsuit for enforcement. According to the court, while the SEC enforcement procedure allowed the SEC to compel payment directly through adjudication before an ALJ, the FCC’s enforcement procedure does not permit the FCC to unilaterally enforce payment. Instead, to enforce the penalty, the DOJ must separately file suit in a district court, where the defendant may request a jury trial.
As explained more fully below, Verizon subsequently filed a petition for certiorari with the Supreme Court.
Fifth Circuit. AT&T filed its petition in the U.S. Court of Appeals for the Fifth Circuit, which reached a different conclusion than the others. The Fifth Circuit held that the FCC’s enforcement procedure at issue was in fact a violation of AT&T’s Seventh Amendment right to a jury trial. The court found that the potential for a jury trial if the DOJ sues to enforce the FCC-imposed penalty is not adequate to cure the Seventh Amendment violation.
The Fifth Circuit disagreed with the D.C. Circuit and Second Circuit, concluding that “section 222 imposes the archetypical common law remedy of money damages, which is ‘all but dispositive’ of the Seventh Amendment issue.”[21] The FCC’s enforcement scheme constitutes a “suit at common law” because it involves a classic legal remedy—civil penalties—for a cause of action analogous to negligence. The court held that Jarkesy applied and determined that the FCC’s civil penalties “are the prototypical common law remedy,” and thus trigger the Seventh Amendment right to a jury trial. And according to the court, the possibility of a jury trial—available only if the carrier refuses to pay the fine and instead risks potential DOJ enforcement—is not sufficient to satisfy the defendant’s Seventh Amendment rights. Based on this reasoning, the Fifth Circuit concluded that, like the SEC’s enforcement scheme, the FCC’s forfeiture process denies defendants their Seventh Amendment right to a jury trial.
The FCC filed a petition for certiorari at the Supreme Court to challenge this Fifth Circuit ruling.
III. Petitions for Certiorari at the Supreme Court
Verizon’s Petition. In its certiorari petition to the Supreme Court, Verizon claims that its case before the Second Circuit was wrongly decided.[22] Citing Jarkesy, Verizon contends that it should have had the opportunity to make its case before a jury before the FCC ordered the company to pay a fine. According to Verizon, the “‘close relationship’ between Section 222 and a common-law cause of action—traditional negligence”—confirms that the FCC’s enforcement action implicates Verizon’s Seventh Amendment rights.[23] Based on this reasoning, Verizon concludes that an FCC enforcement action seeking a monetary forfeiture penalty entitles the defendant carrier the right to a jury trial under the Seventh Amendment.
Verizon argues that a potential jury trial in a later Section 504 collection action does not remedy the constitutional violation because the FCC proceeding itself should have triggered Verizon’s right to a jury trial. In making this argument, Verizon rejects the FCC’s claim that the Seventh Amendment right to a jury trial attaches only at the enforcement phase. Verizon claims that the Second Circuit misapplied Jarkesy because it failed to recognize that the constitutional violation occurs when the agency imposes monetary penalties, rather than when it enforces them. Verizon cites to the Fifth Circuit decision, rejecting the argument that the “possibility of a back-end section 504 trial” is enough to satisfy the Seventh Amendment violation.[24]
FCC’s Petition. In the FCC’s certiorari petition to the Supreme Court, the agency argues that the Fifth Circuit reached the wrong conclusion.[25] The FCC argues that the Fifth Circuit’s decision “severely impairs the agency’s ability to enforce federal communications law.” More specifically, the FCC agrees with the D.C. Circuit and the Second Circuit that the Commission’s procedure for imposing forfeiture penalties complies with the Seventh Amendment. According to the FCC, AT&T had a right to adjudicate the penalty before a jury trial but waived that right by instead choosing to pay the fine and petitioning for review at the Fifth Circuit.
Moreover, citing to Supreme Court precedent, the FCC states that “[t]his Court has twice held that Congress may commit the initial adjudication of a civil case to a non-Article III tribunal acting without a jury, so long as the parties may obtain de novo review in an Article III court with a jury.”[26] The statutory review scheme here, according to the FCC, satisfies the Seventh Amendment because Section 504(a) entitles the carrier to a de novo jury trial before a monetary penalty can be enforced. The FCC thus concludes that AT&T had a right to a jury trial and thus the FCC’s procedure for imposing penalties does not violate the Seventh Amendment.
Despite its win at the Fifth Circuit, A&T responded to the FCC’s petition, agreeing that the Supreme Court should grant certiorari to resolve the 2-1 circuit split.[27] In its filing, AT&T stated “[t]his court should grant both cases, consolidate them for briefing and oral argument, and realign the parties so that the carriers are on one side and the commission is on the other.” AT&T contends that the Supreme Court must address the impact of Jarkesy on FCC enforcement.[28]
IV. Potential Implications of a Supreme Court Decision
In sum, the petitioners here disagree about whether the FCC’s administrative process for imposing fines constitute a violation of the Seventh Amendment right to a jury trial. The Supreme Court’s holding in Jarkesy affirmed that an administrative agency’s use of in-house adjudication to impose civil monetary penalties for claims that are analogous to common-law causes of action constitutes a violation of the Seventh Amendment. But the petitioners disagree about whether the Seventh Amendment right to a jury trial attaches when an agency imposes a monetary penalty or when it tries to enforce that penalty. Finally, the petitioners disagree on whether the decision to pay a forfeiture fine and then appeal, rather than waiting for possible enforcement where the opportunity for a jury trial would arise, constitutes a waiver of the right to a jury trial.
Both petitions for certiorari contend that Supreme Court review is warranted because a U.S. court of appeals has held that a federal statute is unconstitutional, and because there is a circuit split among the courts of appeal that have weighed in on this issue. The petitioners ask the Supreme Court to consolidate the cases and grant a writ for certiorari to resolve the constitutional debate. If the Supreme Court decides to hear the case, its decision could have significant practical consequences for both the FCC and the entities that it regulates.
The FCC relies on its authority to impose monetary penalties as one of its primary mechanisms for enforcing a variety of federal communications laws and regulations. If the Supreme Court decides that the FCC may no longer impose monetary penalties through agency proceedings, the FCC potentially will have to rely on other available remedies, including forfeiture of equipment, cease-and-desist orders, and revocation of licenses or permits. This shift could significantly impair the agency’s enforcement power under Section 222 and other federal communications laws.
[1] 47 U.S.C. § 222(c)
[2] 47 U.S.C. § 222(h)(1).
[3] 47 C.F.R. § 64.2010(a).
[4] 47 C.F.R. § 64.2007(b).
[5] 47 U.S.C. § 503(b)(1)(B).
[6] 47 U.S.C. § 503(b)(2)(B); 47 C.F.R. § 1.80(b)(2).
[7] 47 U.S.C. § 503(b)(2)(E).
[8] 47 U.S.C. § 503(b)(3).
[9] 47 U.S.C. § 503(b)(4).
[10] 47 U.S.C. § 402(a); 28 U.S.C. §§ 2342(1), 2344.
[11] 47 U.S.C. § 504(a); 28 U.S.C. § 2462.
[12] 5 U.S.C. § 706(2).
[13] 5 U.S.C. § 706(2)(A).
[14] 47 U.S.C. § 504(a).
[15] Verizon Communications, Response to Notice of Apparent Liability for Forfeiture and Admonishment (filed May 7, 2020) (on file in EB-TCD-18-00027698).
[16] Sprint Corporation v. FCC, No. 24-1224 (D.C. Cir. 2025).
[17] Verizon Commc’ns Inc. v. Fed. Commc’ns Comm’n, 156 F.4th 86 (2d Cir. 2025).
[18] SEC v. Jarkesy, 603 U.S. 109 (2024).
[19] SEC v. Jarkesy, 603 U.S. 109 (2024).
[20] Id.
[21] FCC v. AT&T Inc., No. 24-60223 (Aug. 22, 2025), citing Jarkesy, 603 U.S. at 123.
[22] Verizon Commc’ns Inc. v. FCC, Petition for Writ of Certiorari, No. 25-567 (U.S. Nov. 6, 2025), citing FCC v. AT&T Inc., No. 24-60223 (Aug. 22, 2025).
[23] Verizon Commc’ns Inc. v. FCC, Petition for Writ of Certiorari, No. 25-567 (U.S. Nov. 6, 2025).
[24] Id.
[25] FCC v. AT&T Inc., Petition for Writ of Certiorari, No. 25-406 (U.S. Oct. 2, 2025).
[26] Id.
[27] Response to Petition for Certiorari, FCC v. AT&T Inc., No. 25-406 (U.S. Dec. 5, 2025).
[28] Id.