T-Mobile Seeks Rehearing of DC Circuit's Data-Fine Ruling
T-Mobile asked the U.S. Court of Appeals for the D.C. Circuit on Monday to rehear en banc the August decision by a three-judge panel upholding the FCC’s data fines against it and Sprint, which it subsequently purchased (see 2508150044). The 2nd Circuit recently upheld a similar fine against Verizon, while the 5th Circuit rejected one against AT&T (see 2509100056).
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“A panel of this Court rejected the Companies’ arguments in an Opinion that openly splits with the Fifth Circuit, is in tension with the Second Circuit’s analysis, conflicts with Supreme Court precedent, and overlooks material factual and legal points,” T-Mobile said in docket 24-1224.
The decision was wrong in holding that T-Mobile wasn’t entitled to a jury trial to contest the fine, the brief said. “The panel misapprehended the adverse consequences that flow from final FCC forfeiture orders, citing a statute addressing non-final notices of apparent liability that may (or may not) culminate in forfeiture orders.”
T-Mobile accused the panel of sidestepping the U.S. Supreme Court’s 2024 decision in SEC v. Jarkesy, which found that when the SEC seeks civil penalties against a defendant for securities fraud, the Seventh Amendment entitles the defendant to a jury trial, and the agency must bring the action in federal court. Jarkesy “compels the conclusion that the Orders violate the Seventh Amendment and Article III” of the Constitution, the brief said.
The opinion also “misconstrues” the Communications Act “in ways that conflict with Supreme Court precedent,” the brief said. “The panel endorsed the FCC’s novel position that all information about a mobile device’s location is customer proprietary network information … even when the device is not making a common-carrier voice call subject to Title II.” The panel “also overlooked that the Companies undisputedly have data-only customers without any covered voice services.”