The Supreme Court has accepted a case that will determine the FCC’s ability to levy fines against the companies it regulates. The lower court cases that brought the issue to the Supreme Court come from fines that the FCC levied against AT&T, T-Mobile, and Verizon after the companies sold customer location data. The FCC said that the carriers did not properly vet the companies that bought customer data, and that many of those companies widely resold the data.

The Fifth Circuit Court sided with AT&T and said that the FCC’s process was unconstitutional. The Second Circuit Court sided with the FCC when reviewing the Verizon fine. The DC Circuit also sided with the FCC when reviewing the fine against T-Mobile.  As often happens when lower courts issue conflicting rulings, the Supreme Court has agreed to review the findings of the lower courts.

The Circuit Court cases invoked a Supreme Court ruling in 2024 in the case of SEC v Jaresky. In that case, the defendant was accused of committing fraud and misrepresenting himself to investors. The Securities and Exchange Commission fined Mr. Jaresky $300,000 and ordered him to disgorge the unlawful profits he made of $685,000. Mr. Jaresky appealed to the Supreme Court and argued that the SEC didn’t have the regulatory authority to directly fine him, and that the SEC had violated his right to a jury trial.

The Supreme Court surprisingly sided with Jaresky and ordered that he should have been given the option for a jury trial rather than a trial by an SEC administrative judge. It was obvious after the Jaresky ruling that companies that were fined by other regulatory agencies would make the same claim if they were denied the right of a jury trial. In this case, the three cellular companies made the argument that the FCC fines were unconstitutional and got contradictory rulings from different lower courts. It’s fairly obvious that the carriers went to different courts hoping for conflicting rulings.

This is a major case for the FCC, since a ruling against it eliminates its ability to fine regulated companies for violating FCC rules. The ability to levy fines has always been one of the agency’s most effective enforcement tools and is one of the few remedies that is less drastic than yanking an FCC license to operate. The FCC has been using fines a lot recently in its attempt to cut down on robocalls and texts. The FCC will become a fairly toothless regulatory agency without the ability to levy fines. Carriers, both large and small, will be less afraid to violate FCC rules if they don’t fear that their violation would warrant a referral to the Justice Department.

This is a really interesting tactic by the cellular carriers. If these particular cases had been referred to a jury instead of an administrative judge, it’s not hard to imagine the fines being a lot larger. It’s not hard to imagine a jury that doesn’t like the idea of a giant corporation selling data that shows everywhere they travel with their cellphone.

This also opens up the possibility of State regulators tackling these kinds of issues and issuing fines if the FCC finds itself unable to do so. I have to think that selling customer data violates the law in multiple states.

If the Jaresky case is the precedent, then it’s hard to think the Court won’t side with the carriers and rule against the FCC. This Supreme Court seems to be very much against what they view as regulatory overstepping of authority, and the Jaresky case is only one of their rulings that are weakening federal regulatory agencies.