Government Says 2nd Circuit Shouldn't Follow 5th Circuit's Logic on Data Fine
The U.S. government urged the 2nd Circuit U.S. Court of Appeals not to look to the 5th Circuit decision overturning an AT&T data fine when it hears arguments Tuesday concerning a $46.9 million penalty the FCC levied against Verizon. The carrier hopes the 2nd Circuit will follow the 5th’s direction (see 2504180021). “The FCC forfeiture order AT&T challenged, which involved AT&T’s location-based-service program, is nearly identical to the order Verizon challenges here,” the carrier told the court. The government responded Friday in docket 24-1733.
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“The Commission’s monetary forfeiture order proceedings pose no Seventh Amendment problem because Section 504(a) [of the U.S. Code] affords carriers the opportunity to demand a de novo jury trial in federal district court before the government can recover any penalty,” the government said: “Verizon elected to forgo that opportunity and instead sought direct appellate review.”
The 5th Circuit “also relied on circuit precedent holding that ‘[i]n a section 504 trial, a defendant cannot challenge a forfeiture order’s legal conclusions,’” the government argued. “This Court, however, has never adopted such a limitation, and the Fifth Circuit’s premise is in doubt.”
The 5th Circuit is considered among the most conservative of the federal circuits. The 2nd Circuit panel that will hear the Verizon case in New York is made up of Senior Judge Gerard Lynch, appointed by President Barack Obama, and Judges Eunice Lee and Alison Nathan, both appointed by President Joe Biden.