Today’s blog takes a deeper dive into the upcoming case at the Supreme Court concerning appeals by AT&T and Verizon over fines levied by the FCC. The original appeals followed an FCC finding that all three major U.S. cellular carriers were liable for violating customer privacy by selling access to customer location data. This data showed every place that a customer visited during the day, something that should make every cell customer uncomfortable. The FCC fined AT&T $50 million, T-Mobile $80 million, and Verizon $47 million, with smaller fines against a few other carriers. The case at the Supreme Court looks specifically at the FCC’s ability to levy fines against the carriers for violating consumer privacy rights.
AT&T and Verizon appealed the FCC fines. Both companies were emboldened by two recent Supreme Court rulings that weakened the FCC’s authority. The first was Loper Bright Enterprises v Raimondo, which said that courts don’t have to defer to expertise at federal agencies when deciding lawsuits. The second case was SEC v. Jaresky, which said that federal agencies should give defendants a chance to have a trial by jury in a federal court rather than levying fines.
As usually happens with cases that make it to the Supreme Court, lower courts issued conflicting opinions about the FCC fines. The 5th U.S. Circuit Court of Appeals overturned the fines levied against AT&T, while the 2nd U.S. Circuit Court of Appeals upheld the FCC’s fines against Verizon.
One of the more interesting things about both appeals was that the carriers did not deny their bad actions – they had clearly allowed access to customer location data. Both appeals relied on the Supreme Court ruling in SEC v. Jaresky and argued that the FCC should have offered the carriers the chance to take the cases to court and hold a jury trial as an alternative to the FCC fines.
It’s clear that the carriers are trying to weaken or break the FCC’s ability to levy fines and are willing to go through this process as a way to avoid future fines. I find it unbelievable that the carriers would have chosen to take this specific case to a jury if they had been given that option. It’s impossible to seat a jury of people who don’t use cellphones, and I would wager that a jury would be unhappy that a carrier would sell the data to track them 24/7. It’s easy to imagine that a jury would assess damages much larger than the FCC fines if these cases had instead gone straight to court.
It will be interesting to see what the carriers do if they win this case. Winning doesn’t take them off the hook for selling customer data, and the cases would likely be remanded back to the FCC to give the carriers the option for a jury trial. As silly as it sounds, I’m dubious that, even with a second chance, the carriers would choose the jury trial. Again, the real goal of the carriers in this case is to weaken the FCC’s options in future disputes.
It will be unfortunate if the Supreme Court sides with the carriers and hobbles the FCC’s ability to levy fines. The FCC typically fines regulated companies for two reasons, for failing to comply with FCC rules or for abusing the general public. The first type of fines is generally relatively small and the big fines are saved for companies engaged in abuse and fraud of the public. In a recent action, the FCC fined Telnyx LLC for allowing foreign scam robocalls into the U.S. telephone network.
Protecting the public is one of the major roles of a regulatory agency. A policy shift that makes it difficult or impossible to hold large corporations accountable for abuses against the public would be a terrible outcome.







