Wireless-Led Petition Asks FCC to Examine Enforcement Procedures
Major communications trade groups filed a petition Thursday asking the FCC for a rulemaking on its enforcement procedures, especially in light of the U.S. Supreme Court’s 2024 Jarkesy decision about whether federal regulatory agencies can bring in-house proceedings to enforce civil penalties. CTIA, the Competitive Carriers Association, NCTA, USTelecom and the Wireless Infrastructure Association filed the petition.
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Jarkesy "renders the Commission’s current enforcement process unconstitutional, as the decision clearly indicates that it violates the Seventh Amendment right to a jury trial for the Commission to impose civil monetary penalties through its in-house enforcement process,” the petition argued. It also noted the 5th U.S. Circuit Court of Appeals’ ruling overturning an AT&T data fine (see 2504180021).
Based on these precedents, “the Commission may not continue to impose fines or assess monetary forfeitures,” the groups said: “When the Commission uses enforcement actions to make new policy rather than following clear precedent, parties are deprived of fair notice in conflict with established due process principles.”
The petition also asserted that the Enforcement Bureau’s actions are inconsistent and too often unaccountable. “There is no process either internal to the agency or at the courts for parties to seek review of procedural abuses during investigations,” it said. “This leaves the procedures, methods, and scope of investigations within the discretion of the Bureau itself ... In light of these problems, the Commission should commence a rulemaking that evaluates FCC rules and practices involving investigations,” letters of inquiry (LOIs), notices of apparent liability and final decisions, the petition argued. The commission should prohibit “imposing new substantive legal obligations in an enforcement action [and] fix the investigative process, as LOIs are in desperate need of clear and dependable guardrails, and it should adopt a mechanism for independent review of LOIs to ensure they do not place unreasonable demands on target entities.”
In a blog post Thursday, CTIA General Counsel Umair Javed said: “Recognizing that only Congress can fix the Seventh Amendment failings identified by the courts, the multi-trade association petition filed today offers several steps that address other legal shortcomings of the FCC’s enforcement practices, better capturing fundamental due process principles of fair notice, consistency, and government accountability in the FCC’s work.”