Government Asks 5th Circuit for En Banc Review of AT&T Data Fine Case
The FCC and DOJ last week asked the 5th U.S. Circuit Court of Appeals to rehear en banc an order that tossed the FCC's $57 million fine imposed on AT&T because the agency's in-house adjudication was unconstitutional (see 2504180001). The 5th Circuit is widely viewed as the most right-leaning of the circuits and is a favored location by industry for challenging federal regulation.
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The government defended fines against the three major wireless carriers -- even though Republicans Brendan Carr and Nathan Simington, both commissioners at the time, opposed them last year -- for allegedly failing to safeguard data on customers' real-time locations (see 2502030050). But the government saw larger implications for the FCC’s authority to impose fines that went beyond the narrower issues in question in the case.
The court's decision to overturn the AT&T fine "conflicts with the precedent of this Court and the Supreme Court, effectively holds unconstitutional an Act of Congress, and has far-reaching implications that could hamstring the government’s ability to ensure compliance with the Communications Act,” the government said in its latest filing (docket 24-60223). Depriving the commission “of the flexibility to assess monetary forfeitures for regulatory violations would necessarily relegate the agency to an increased reliance on license revocation or nonrenewal for regulatory violations -- severe, all-or-nothing penalties that would affect regulated parties far more substantially than targeted fines.”
The panel’s decision didn’t take into account the availability of a jury trial if AT&T had sought one and “conflicts with decisions of this Court and the Supreme Court holding that the Seventh Amendment can be satisfied by a jury trial following an initial determination by another tribunal,” the government said. “The availability of a de novo jury trial should have resolved AT&T’s Seventh Amendment objections, and rehearing en banc is warranted.”