FCC Defends T-Mobile Data Fine at D.C. Circuit
The FCC defended its 3-2 April decision (see 2404290044) to fine T-Mobile $80 million for allegedly not safeguarding data on customers' real-time locations, filing a brief Friday with the U.S. Court of Appeals for the D.C. Circuit. T-Mobile was also fined $12.2 million for violations by Sprint, which it later acquired. Whether the government will continue fighting T-Mobile and the other major carriers is in doubt following the start of Donald Trump's presidency next week, industry lawyers said. Republican Commissioners Brendan Carr and Nathan Simington dissented on the April order, even though the FCC approved the initial notices of apparent liability under Republican Chair Ajit Pai with Carr’s approval (see 2002280065). Simington wasn’t a commissioner at that time. Verizon challenged the FCC’s fine in the 2nd Circuit, AT&T in the 5th Circuit (see 2411060008). The 5th Circuit is slated to hear oral argument the week of Feb. 3.
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“The Carriers relied on an attenuated chain of contract provisions -- which they failed to enforce -- to protect against misuse of their customers’ location data,” said the government brief, posted Friday in docket 24-122. “Those measures did not work,” the brief continued: “When news broke that a location-based service provider had allowed a sheriff in Missouri to illegally track people without their consent, it became clear that the Carriers were not meaningfully in control of their customers’ location information.” Carriers “were slow to act,” continuing to share “customer location data with dozens of third parties for as much as a year after learning their safeguards were ineffective.” In assessing fines, “the Commission found that the Carriers had failed to take reasonable steps to discover and protect against misuse of their customers’ information, as the Communications Act and FCC regulations require.”
The brief added, “The Commission acted well within its authority under the Constitution and the Communications Act to assess monetary forfeitures against two major wireless carriers for their failure to take reasonable steps to discover and protect against serious misuse of their customers’ location data by third parties.” In addition, the government argued that despite T-Mobile’s protests (see 2411260048), customers' location data is customer proprietary network information “because it ‘relates’ to the ‘location’ of a telecommunications service.” Carriers argue that laws protecting CPNI apply only to location data “generated by the customer’s use of a telecommunications service, and thus only protects customers when they are making a phone call,” the brief said: “That reading … would produce anomalous results, and ignores the Commission’s conclusion that carriers use customer location data to support the provision of telecommunications service to their customers whether or not a customer is actively making a call.” T-Mobile’s reply brief is due Feb. 18.