Amicus Curiae Brief — Federal Communications Commission, et al., Petitioners v. AT&T, Inc.

Nos. 25-406, 25-567

IN THE

Supreme Court of the United States

FEDERAL COMMUNICATIONS COMMISSION, ET AL.,

Petitioners,

v.

AT&T, INC.,

Respondents.

VERIZON COMMUNICATIONS INC.,

Petitioners,

v.

FEDERAL COMMUNICATIONS COMMISSION, ET AL.,

Respondents.

On Writs of Certiorari

to the United States Courts of Appeals

for the Second and Fifth Circuits

BRIEF OF AMICUS CURIAE T-MOBILE USA, INC.

IN SUPPORT OF AT&T, INC. AND VERIZON

COMMUNICATIONS INC.

HELGI C. WALKER

Counsel of Record

RUSSELL B. BALIKIAN

GIULIANA CIPOLLONE

ALY COX

GIBSON, DUNN & CRUTCHER LLP

1700 M Street, N.W.

Washington, D.C. 20036

(202) 955-8500

hwalker@gibsondunn.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE ........................... 1

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT ............................................................... 6

I.

Many Courts Forbid Legal Challenges To

Forfeiture Orders In § 504(a) Collection

Actions, Precluding A Finding Of Waiver. .... 6

II.

The Court Should Reach The Merits Of

The Constitutional Question, As All

Parties Request. ........................................... 14

III. The FCC’s Self-Adjudicated Proceedings

Illustrate The Need For A Jury Trial In

An Article III Court. .................................... 18

CONCLUSION .......................................................... 22

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Air & Liquid Sys. Corp. v. DeVries,

586 U.S. 446 (2019) .............................................. 16

AT&T Corp. v. FCC,

323 F.3d 1081 (D.C. Cir. 2003) ........................ 7, 10

AT&T v. FCC,

149 F.4th 491 (5th Cir. 2025) ........ 8, 12, 15, 16, 18

Axalta Coating Sys. LLC v. FAA,

144 F.4th 467 (3d Cir. 2025) .......................... 17, 18

Axon Enter., Inc. v. FTC,

598 U.S. 175 (2023) .............................................. 12

Capital Traction Co. v. Hof,

174 U.S. 1 (1899) .............................................. 8, 10

Chao v. Mallard Bay Drilling, Inc.,

534 U.S. 235 (2002) .............................................. 17

Dimick v. Schiedt,

293 U.S. 474 (1935) .............................................. 13

Duncan v. Louisiana,

391 U.S. 145 (1968) .......................................... 6, 22

Groff v. DeJoy,

600 U.S. 447 (2023) .............................................. 17

Hertz Corp. v. Friend,

559 U.S. 77 (2010) ................................................ 12

iii

McLaughlin Chiropractic Assocs., Inc. v.

McKesson Corp.,

606 U.S. 146 (2025) .......................................... 3, 12

NLRB v. Starbucks Corp.,

159 F.4th 455 (6th Cir. 2025) .............................. 18

Ortega v. Off. of the Comptroller of the

Currency,

155 F.4th 394 (5th Cir. 2025) .............................. 17

In re Peterson,

253 U.S. 300 (1920) .............................................. 13

Reno v. Am.-Arab Anti-Discrimination

Comm.,

525 U.S. 471 (1999) .............................................. 17

SEC v. Jarkesy,

603 U.S. 109 (2024) .......... 4, 6, 8, 10, 13, 15, 16, 18

Seven Cnty. Infrastructure Coal. v.

Eagle Cnty., Colo.,

605 U.S. 168 (2025) .............................................. 18

Thomas v. Union Carbide Agricultural

Products Co.,

473 U.S. 568 (1985) .............................................. 18

In re Tsay JBR LLC,

136 F.4th 1176 (9th Cir. 2025) ............................ 18

Tull v. United States,

481 U.S. 412 (1987) ........................................ 10, 16

iv

United States v. Any and All Radio

Station Transmission Equip.,

204 F.3d 658 (6th Cir. 2000) ................................ 11

United States v. Any and All Radio

Station Transmission Equip.,

207 F.3d 458 (8th Cir. 2000) .................................. 9

United States v. Dudley,

2020 WL 4284052

(N.D. Ala. July 27, 2020) ................................... 2, 9

United States v. Hodson Broad.,

666 F. App’x 624 (9th Cir. 2016) ....................... 2, 9

United States v. Jackson,

390 U.S. 570 (1968) ................................................ 8

United States v. Metzger,

2008 WL 11336647

(M.D. Fla. July 7, 2008) ..................................... 2, 9

United States v. Ne. Commc’ns of

Wis., Inc.,

608 F. Supp. 2d 1049

(E.D. Wis. 2008) ................................................... 10

United States v. Neely,

595 F. Supp. 2d 662 (D.S.C. 2009)..................... 2, 9

United States v. Pennington,

2023 WL 2542594

(E.D. Ky. Mar. 16, 2023) ................................ 10, 12

v

United States v. Rhodes,

2022 WL 17484847

(D. Mont. Dec. 7, 2022) ................................ 2, 9, 11

United States v. Stevens,

691 F.3d 620 (5th Cir. 2012) .......................... 2, 8, 9

United States v. Sutton,

2024 WL 2926594

(W.D. Ark. Mar. 27, 2024) ..................................... 9

United States v. TravelCenters of Am.,

597 F. Supp. 2d 1222 (D. Or. 2007) ................... 2, 9

United States v. Unipoint Techs., Inc.,

159 F. Supp. 3d 262 (D. Mass. 2016) ................... 10

Wood v. Milyard,

566 U.S. 463 (2012) .............................................. 11

Statutes

28 U.S.C. § 2342(1) .................................................. 3, 7

28 U.S.C. § 2344 ................................................ 3, 7, 12

47 U.S.C. § 222(a) ...................................................... 16

47 U.S.C. § 402(a) ........................................................ 7

47 U.S.C. § 503(b) ...................................... 6, 15, 16, 20

47 U.S.C. § 504(a) .............................. 1–3, 6–13, 17, 22

47 U.S.C. § 510 ...................................................... 9, 11

vi

Constitutional Provisions

U.S. Const. art. III......................... 1, 2, 4–8, 10–18, 22

U.S. Const. amend. VII ........... 1, 4, 6, 7, 10–16, 18, 22

Regulations

47 C.F.R. § 64.2010(a) ............................................... 16

Other Authorities

AT&T, Inc., Notice of Apparent

Liability for Forfeiture and

Admonishment,

35 FCC Rcd 1743 (2020) ................................ 20, 21

Geoffrey Starks, Why It’s So Easy for a

Bounty Hunter to Find You, N.Y.

Times (Apr. 2, 2019)............................................. 20

In re Implementation of the Telecomms.

Act of 1996, Declaratory Ruling, 28

FCC Rcd 9609 (2013) ........................................... 20

Jennifer Valentino-DeVries, Service

Meant to Monitor Inmates’ Calls

Could Track You, Too, N.Y. Times

(May 10, 2018) ...................................................... 19

Joint Application of Securus Inv.

Holdings, LLC,

32 FCC Rcd 9564 (2017) ...................................... 19

1

INTEREST OF AMICUS CURIAE 1

T-Mobile USA, Inc. (“T-Mobile”) is one of the nation’s largest providers of mobile wireless communication services. T-Mobile has a vital interest in the outcome of these cases because the Federal Communications Commission (“FCC”) imposed a penalty of more

than $80 million on T-Mobile in a materially identical

forfeiture order raising the same Seventh Amendment

and Article III issues. The FCC also imposed a penalty of more than $12.2 million on Sprint Corp., whose

successor entity is a subsidiary of T-Mobile.2

T-Mobile and Sprint thus faced the same stark

choice as AT&T and Verizon (“petitioners”): either pay

the penalties under protest to secure judicial review

in the court of appeals, or violate the final orders by

refusing to pay and await a possible collection action

under 47 U.S.C. § 504(a). Like petitioners, T-Mobile

and Sprint paid the penalties and petitioned for review, raising the same constitutional arguments presented here. The D.C. Circuit denied the petitions.

Because the FCC is T-Mobile’s primary regulator,

the company has a substantial interest in ensuring

that the Seventh Amendment and Article III are

properly applied not only in this matter but to the

agency’s forfeiture regime more broadly. T-Mobile’s

1

Pursuant to Supreme Court Rule 37.6, counsel for amicus

states that no counsel for a party authored this brief in whole or

in part, and no person or entity other than amicus or its counsel

made a monetary contribution intended to fund the preparation

or submission of this brief.

2

T-Mobile’s corporate parent merged with Sprint Corp. in

2020, but the FCC initiated its investigation prior to the merger

and imposed separate forfeiture orders on T-Mobile and Sprint

in 2024. The orders were thus litigated in consolidated proceedings under T-Mobile’s and Sprint’s names.

2

recent experience litigating materially identical forfeiture orders also places it in a unique position to explain why the government’s waiver theory under

§ 504(a) is unsound and untenable.

SUMMARY OF ARGUMENT

The government’s waiver theory rests on a faulty

premise: that any collection action under 47 U.S.C.

§ 504(a) secures de novo review of all legal and factual

findings in an FCC forfeiture order, thus satisfying

the constitutional promise of a jury trial in an Article

III court. That premise is legally incorrect under this

Court’s precedents for all the reasons petitioners explain. It is also wrong as a practical matter.

In reality, courts have reached divergent conclusions about whether § 504(a) even allows legal challenges to the underlying FCC forfeiture order. Despite § 504(a)’s reference to a “trial de novo,” many

courts—including the Fifth Circuit—have held that

forfeiture subjects cannot raise some or all legal challenges to FCC forfeiture orders. E.g., United States v.

Stevens, 691 F.3d 620, 622 (5th Cir. 2012); United

States v. Neely, 595 F. Supp. 2d 662, 669 (D.S.C. 2009);

United States v. TravelCenters of Am., 597 F. Supp. 2d

1222, 1227 (D. Or. 2007); United States v. Rhodes,

2022 WL 17484847, *3–*4 (D. Mont. Dec. 7, 2022);

United States v. Dudley, 2020 WL 4284052, *3 (N.D.

Ala. July 27, 2020); United States v. Metzger, 2008 WL

11336647, at *2–*3 (M.D. Fla. July 7, 2008). Other

courts restrict challenges to penalty amounts. E.g.,

United States v. Hodson Broad., 666 F. App’x 624, 628

(9th Cir. 2016). And many courts have not addressed

these issues. While some courts hold that § 504(a) allows both legal and factual challenges, the U.S. Department of Justice (“DOJ”) controls the forum for

3

§ 504(a) collection actions—and the Communications

Act provides for nationwide venue. 47 U.S.C. § 504(a).

Forfeiture subjects thus have no assurance that a

§ 504(a) action (if one is filed) would allow all challenges to a forfeiture order. Indeed, DOJ has every

incentive to select a forum that restricts such challenges.

The government cannot cure this uncertainty by

invoking McLaughlin Chiropractic Associates, Inc. v.

McKesson Corp., 606 U.S. 146 (2025). McLaughlin

held, in the context of a lawsuit between private parties, that district courts are not bound by the FCC’s

interpretation of the Telephone Consumer Protection

Act (“TCPA”). No court that restricts the scope of government-initiated § 504(a) collection actions has yet

addressed whether McLaughlin requires expanding

these proceedings. And McLaughlin certainly cannot

support a waiver finding here. Petitioners needed to

decide whether to seek review under the Hobbs Act,

28 U.S.C. § 2344, by June 28, 2024. This Court had

not even granted certiorari in McLaughlin at that

time. Waiver cannot turn on doctrinal developments

that had not yet occurred.

There is ultimately a straightforward reason why

AT&T, Verizon, T-Mobile, and Sprint each decided to

seek review under the Hobbs Act, 28 U.S.C. § 2342(1),

even though it meant paying tens of millions of dollars

in penalties: The FCC’s final orders imposed immediate, real-world harms, and a hypothetical, government-initiated § 504(a) collection action of uncertain

scope in an unknown venue at an unknown time was

not a viable alternative. Petitioners did not intentionally relinquish their constitutional rights by invoking

4

the only statutory mechanism that secured them. The

Court should reject the government’s waiver theory.

If the Court rejects the waiver theory, it should

also hold that the Communications Act provisions

governing the FCC’s assessment and enforcement of

monetary forfeitures violate the Seventh Amendment

and Article III. All parties—including the government—have asked this Court to address that constitutional question. And notably, the government does

not dispute “the Fifth Circuit’s holdings that (a) a case

in which the FCC seeks a forfeiture penalty to enforce

Section 222 of the Act is a suit at common law and (b)

such a suit falls outside the public-rights exception to

the Seventh Amendment and Article III.” Petition for

a Writ of Certiorari, FCC v. AT&T Inc., No. 25-406, at

7 (Oct. 2, 2025) (“FCC Pet.”).

For good reason: Under SEC v. Jarkesy, 603 U.S.

109 (2024), the civil penalties the FCC imposed are

classic legal remedies intended to punish or deter,

which is all but dispositive of the Seventh Amendment’s applicability. Furthermore, the FCC’s claim

that carriers failed to take reasonable measures to

protect certain customer data is analogous to common-law negligence. Because these proceedings seek

civil penalties for conduct analogous to traditional

common-law suits, they fall far outside the narrow

“public rights” exception to Article III adjudication.

These questions are logically antecedent to the government’s waiver theory, and addressing them now

will avoid protracting this litigation longer than necessary and ensure the expeditious resolution of these

cases.

5

The context of these cases further demonstrates

why it is essential to protect the constitutional right

to a jury trial overseen by an independent Article III

judge that resolves questions of law. The FCC initiated investigations against all four major carriers in

reaction to press coverage of a rogue sheriff’s criminal

conduct—an incident the agency had previously

known about for months without saying a word to the

carriers. During the investigation, at least one Commissioner publicly pressured the agency to take action. The FCC then issued to each carrier a Notice of

Apparent Liability (“NAL”) that proposed to base liability on an entirely novel and overbroad interpretation of “customer proprietary network information,” or

“CPNI,” that contradicted the FCC’s own prior guidance. The FCC further proposed tens of millions of

dollars in penalties, blowing past the $2 million inflation-adjusted statutory cap. Several Commissioners

issued statements alongside the NALs arguing that

the FCC should have gone even further, suggesting

they had made up their minds before receiving the

carriers’ responses.

Having served as investigators, rulemakers, and

prosecutors in these proceedings, the Commissioners

proceeded to adjudicate the very charges they had

brought. A bare majority imposed nearly $200 million

in total penalties on the four carriers, concluding—under the newly announced CPNI definition—that the

carriers had “willfully and repeatedly violated” the

Communications Act and FCC rules and that an “upward adjustment” was warranted for purportedly

“egregious” conduct. FCC Pet. App. 105a–107a, 131a;

Verizon Pet. App. 122a–124a, 138a. The FCC further

asserted authority to impose hundreds of trillions of

6

dollars in penalties—more than the entire world’s

GDP—by measuring the number of violations by the

number of subscribers. The orders did not merely recommend a penalty; they “ORDERED” that each carrier “IS LIABLE” and required payment “within

thirty (30) calendar days after the release of this Forfeiture Order.” FCC Pet. App. 131a; Verizon Pet. App.

138a–139a.

Against that backdrop, the government cannot

credibly claim that the carriers should have simply ignored the FCC’s adverse findings, refused to pay the

forfeitures, allowed the Hobbs Act’s 60-day review

window to close, and waited up to five years to see

whether and where DOJ filed a § 504(a) collection action. The constitutional right to a jury trial in an Article III court is intended to protect against the very

dangers that materialized in this case by serving as

“an inestimable safeguard” of a neutral and independent adjudicator. Duncan v. Louisiana, 391 U.S. 145,

156 (1968). The proceedings here violated the Seventh Amendment and Article III.

ARGUMENT

I.

Many Courts Forbid Legal Challenges To

Forfeiture Orders In § 504(a) Collection

Actions, Precluding A Finding Of Waiver.

The forfeiture orders before the Court are final

agency actions that command the payment of massive

civil penalties within 30 days. E.g., FCC Pet. App.

131a; Verizon Pet. App. 138a–139a. The FCC imposed

the penalties itself pursuant to 47 U.S.C. § 503(b)(4),

after rejecting petitioners’ legal and factual objections—including their contention that the imposition

of monetary penalties without a jury trial in federal

7

court would violate the Seventh Amendment and Article III under SEC v. Jarkesy, 603 U.S. 109 (2024).

The only statutory mechanism for petitioners to

secure judicial review of these forfeiture orders was to

pay the penalties and petition for review under the

Hobbs Act within 60 days—and that is what they did.

28 U.S.C. §§ 2342(1), 2344; 47 U.S.C. § 402(a); AT&T

Corp. v. FCC, 323 F.3d 1081, 1083–85 (D.C. Cir.

2003). Petitioners challenged the forfeitures on numerous legal and factual grounds, including by arguing that the FCC-imposed penalties violated their constitutional right to a federal jury trial. T-Mobile and

Sprint took the same approach to materially identical

forfeiture orders that collectively imposed more than

$92 million in penalties. See T-Mobile USA, Inc. v.

FCC, No. 24-1225 (D.C. Cir. June 27, 2024); Sprint

Corp. v. FCC, No. 24-1224 (D.C. Cir. June 27, 2024).

The government nevertheless contends that the

carriers “waived” their constitutional right to a federal jury trial by petitioning for review in the court of

appeals. According to the government, the carriers

should have violated the FCC’s final orders by refusing to pay the forfeitures, allowed the Hobbs Act’s

60-day review period to lapse, and waited to see

whether DOJ would initiate a collection action under

47 U.S.C. § 504(a). See FCC Pet. 11. Because § 504(a)

refers to a “trial de novo,” the government assumes

that a § 504(a) collection action (if one were filed)

would satisfy the Seventh Amendment and Article III.

Id. at 10.

Petitioners have identified the doctrinal flaws in

that position (at Op. Br. 31–36). The possibility of an

after-the-fact, government-initiated collection action—subject to a five-year statute of limitations—

does not cure the constitutional defects created when

8

the agency itself adjudicates liability and imposes

punishment. Such a collection action is possible only

after the forfeiture subject defies a final agency order,

forgoes Hobbs Act review, and suffers the “real-world

impacts” of an unreviewed forfeiture order. AT&T v.

FCC, 149 F.4th 491, 503 (5th Cir. 2025). This Court

has made clear that the jury-trial right cannot be subject to such unconstitutional conditions. United

States v. Jackson, 390 U.S. 570, 581–83 (1968); Capital Traction Co. v. Hof, 174 U.S. 1, 20, 45 (1899). Under Jarkesy, “initial adjudication” in an Article III

court is required. Jarkesy, 603 U.S. at 128.

The government’s waiver theory fails for an additional reason: It assumes that a § 504(a) collection action would allow carriers to raise all legal and factual

challenges to the forfeiture order and penalty. But as

explained below, many courts have held otherwise,

curtailing challenges to the underlying forfeiture order. And because DOJ selects the forum for these lawsuits under § 504(a)’s nationwide venue provision,

carriers have no ability to ensure that any collection

action is filed in a jurisdiction that would entertain

their arguments. Petitioners cannot be deemed to

have waived their constitutional right to a jury trial

in an Article III court by declining to rely on a hypothetical proceeding that would not reliably secure

those rights.

Multiple courts have held that—notwithstanding

§ 504(a)’s reference to a “trial de novo”—§ 504(a) permits factual challenges to forfeiture orders but forbids

some or all legal challenges. The Fifth Circuit, for example, has held that “[p]ersons aggrieved by a final

FCC forfeiture order must raise legal challenges to the

validity of the order in a timely petition for review in

the appropriate court of appeals.” United States v.

9

Stevens, 691 F.3d 620, 623 (5th Cir. 2012). In that circuit, a district court’s jurisdiction in a § 504(a) collection action is “limited to considering the factual basis

for the agency action,” such that the forfeiture subject

may raise only “a factual defense to enforcement of the

forfeiture.” Id. at 622. Other courts have similarly

held that a district court’s authority in a § 504(a) collection action “does not include the power to entertain

challenges, raised in defense of a forfeiture recovery

action, to the validity of an underlying FCC regulation.” United States v. Neely, 595 F. Supp. 2d 662, 669

(D.S.C. 2009); United States v. TravelCenters of Am.,

597 F. Supp. 2d 1222, 1227 (D. Or. 2007) (similar);

United States v. Rhodes, 2022 WL 17484847, *3–*4

(D. Mont. Dec. 7, 2022) (similar); United States v.

Dudley, 2020 WL 4284052, *3 (N.D. Ala. July 27,

2020) (similar); United States v. Metzger, 2008 WL

11336647, at *2–*3 (M.D. Fla. July 7, 2008) (similar).

The Eighth Circuit has reached a similar conclusion

in the context of in rem forfeitures under 47 U.S.C.

§ 510, relying on § 504(a) precedents. United States v.

Any and All Radio Station Transmission Equip., 207

F.3d 458, 463 (8th Cir. 2000).

Still other courts refuse to conduct de novo review

of the penalty amount, instead applying a deferential

reasonableness or abuse-of-discretion standard—

much like Hobbs Act review of an agency order. The

Ninth Circuit, for example, has reviewed de novo the

FCC’s liability determination but reviewed the forfeiture amount only to determine whether it reflects a

“reasonable application of the statute and the ‘adjustment criteria’ set out in § 1.80(II) of the FCC’s rules”

because “[t]he determination of the amount of a forfeiture is committed to the discretion of the FCC.”

United States v. Hodson Broad., 666 F. App’x 624, 628

(9th Cir. 2016); see also United States v. Sutton, 2024

10

WL 2926594, at *12 (W.D. Ark. Mar. 27, 2024), report

and recommendation adopted, 2024 WL 2922991

(W.D. Ark. June 10, 2024) (applying Hodson).

At least one court has even questioned whether a

jury is available at all in a § 504(a) collection action.

According to that court, “[f]orfeiture is a sui generis

process, which may curtail any jury involvement.”

United States v. Pennington, 2023 WL 2542594, at *4

n.10 (E.D. Ky. Mar. 16, 2023). And many courts have

not weighed in on these questions.

A proceeding limited in any of these ways could

not satisfy the Seventh Amendment and Article III.

The right to a “[t]rial by jury” in an Article III court

guarantees a trial by a 12-person jury conducted “in

the presence and under the superintendence of a

judge empowered to instruct them on the law and to

advise them on the facts, and (except on acquittal of a

criminal charge) to set aside their verdict, if, in his

opinion, it is against the law or the evidence.” Hof,

174 U.S. at 13–14. Civil penalties, moreover, are assessed and enforced “in courts of law,” not deferred to

based on extrajudicial agency adjudication. Jarkesy,

603 U.S. at 123 (quoting Tull v. United States, 481

U.S. 412, 422 (1987)). Accordingly, when the government seeks civil penalties, the claim “must” be decided

by “an Article III court . . . with a jury.” Id. at 127. A

§ 504 collection action that bars legal challenges, limits review of the penalty amount, or dispenses with a

jury cannot satisfy the requirements of the Seventh

Amendment and Article III.

To be sure, some courts have held that § 504(a)’s

reference to a “trial de novo” allows a forfeiture subject to raise both legal and factual defenses. E.g.,

AT&T Corp., 323 F.3d at 1083–85; United States v.

Unipoint Techs., Inc., 159 F. Supp. 3d 262, 273 (D.

11

Mass. 2016); United States v. Ne. Commc’ns of Wis.,

Inc., 608 F. Supp. 2d 1049, 1053 (E.D. Wis. 2008); cf.

United States v. Any and All Radio Station Transmission Equip., 204 F.3d 658, 667 (6th Cir. 2000) (similar

reasoning under § 510). But that does not solve the

constitutional problem. Forfeiture subjects cannot

control where DOJ brings suit, and § 504(a) provides

nationwide venue for collection actions against carriers. 47 U.S.C. § 504(a) (collection action may be filed

“in any district through which the line or system of

the carrier runs”). DOJ thus could file in a jurisdiction that limits challenges to the underlying forfeiture

order—or in one that has not addressed the question.

It has every incentive to do so.

Given § 504(a)’s nationwide venue provision and

the “divergent case law regarding a district court’s jurisdiction” in collection actions, Rhodes, 2022 WL

17484847, at *3, the carriers took the only sensible

course to preserve their constitutional rights and

other arguments—they petitioned for review under

the Hobbs Act and argued that the orders were unconstitutional and otherwise unlawful. It cannot be inferred that petitioners waived—i.e., voluntarily and

intentionally relinquished, Wood v. Milyard, 566 U.S.

463, 474 (2012)—their Seventh Amendment and Article III rights by pursuing that statutory avenue rather

than awaiting a hypothetical § 504(a) collection action. The cases discussed above confirm that even if

such an action were filed, its scope would be uncertain. Petitioners invoked the only mechanism that

guaranteed judicial consideration of their legal and

constitutional arguments.

In its Fifth Circuit rehearing petition, the government argued that waiver was proper because Stevens

12

and similar decisions limiting § 504(a) collection action were abrogated by McLaughlin Chiropractic Assocs., Inc. v. McKesson Corp., 606 U.S. 146 (2025).

That argument fails for two independent reasons.

First, none of the courts adopting restrictive views

of § 504(a) has held that McLaughlin abrogates those

decisions. See AT&T, 149 F.4th at 503 n.16 (noting

only that “Stevens has possibly been called into question”). The decisions therefore remain in force, and

the government’s suggestion that these courts would

now reach different conclusions is pure speculation.

McLaughlin held that a district court is not bound by

the FCC’s interpretation of the TCPA in the context of

a private lawsuit; it did not expressly address the

scope of a § 504(a) collection action. 606 U.S. at 159.

A court that views § 504(a) proceedings as “sui generis” thus may well adhere to its prior, restrictive holdings. Pennington, 2023 WL 2542594, at *4 n.10. In

these circumstances, the carriers’ decision to seek

Hobbs Act review and assert their Seventh Amendment and Article III objections cannot be characterized as a waiver. Regulated parties cannot be expected to roll the dice on how an unidentified district

court might resolve unsettled jurisdictional questions

bearing on foundational constitutional rights. See

Axon Enter., Inc. v. FTC, 598 U.S. 175, 212 (2023)

(Gorsuch, J., concurring in judgment) (“Jurisdictional

rules, this Court has often said, should be ‘clear and

easy to apply.’”); accord Hertz Corp. v. Friend, 559

U.S. 77, 94 (2010).

Second, even assuming McLaughlin abrogates

these § 504(a) decisions, they indisputably governed

in June 2024, when the 60-day Hobbs Act deadline expired. 28 U.S.C. § 2344; see FCC Pet. App. 46a; Verizon Pet. App. 41a. This Court had not even granted

13

certiorari in McLaughlin by that date, let alone issued

its decision (which itself was divided). Waiver cannot

rest on the premise that petitioners should have predicted this doctrinal development and staked their

constitutional rights on it.

In short, there is a straightforward reason why all

four national carriers—AT&T, Verizon, T-Mobile, and

former Sprint—decided to seek Hobbs Act review,

even though that meant paying tens of millions of dollars under protest. It was the only mechanism that

guaranteed judicial consideration of their constitutional and other objections to the forfeiture orders.

The government’s waiver theory ignores that reality and would put carriers in an impossible position.

It would force them to “choose” between (i) pursuing

direct appellate review of legal issues while supposedly “waiving” their constitutional right to a jury trial

in an Article III court, or (ii) violating a final order of

their primary regulator, forgoing the right to immediate review, and suffering the consequences of an unreviewed forfeiture order—with no guarantee that

DOJ will file a § 504(a) collection action at all, much

less in a timely manner and in a venue that allows

both legal and factual challenges. That review regime

would impose an “undue obstruction on the right to a

jury trial,” In re Peterson, 253 U.S. 300, 310 (1920)—a

right that “is ‘of such importance and occupies so firm

a place in our history and jurisprudence that any

seeming curtailment of the right’ has always been and

‘should be scrutinized with the utmost care.’” Jarkesy,

603 U.S. at 121 (quoting Dimick v. Schiedt, 293 U.S.

474, 486 (1935)).

Petitioners did not waive their Seventh Amendment and Article III rights by challenging the FCC’s

forfeiture orders under the Hobbs Act.

14

II. The Court Should Reach The Merits Of The

Constitutional Question, As All Parties

Request.

In addition to rejecting the government’s waiver

theory, the Court should reach the merits and hold

that the forfeiture orders violate the Seventh Amendment and Article III. The constitutional question is

squarely presented, and the government does not dispute that the Fifth Circuit correctly applied Jarkesy

and the public-rights exception.

The questions presented in both AT&T and Verizon ask the Court to address the Seventh Amendment

and Article III on the merits. The government frames

the question presented as “[w]hether the Communications Act provisions that govern the FCC’s assessment

and enforcement of monetary forfeitures are consistent with the Seventh Amendment and Article III.”

FCC Pet. I. AT&T and Verizon similarly frame the

question as “[w]hether the Communications Act violates the Seventh Amendment and Article III by authorizing the FCC to order the payment of monetary

penalties for failing to reasonably safeguard customer

data, without guaranteeing the defendant carrier a

right to a jury trial.” Petition for a Writ of Certiorari,

Verizon Commc’ns Inc. v. FCC, No. 25-567, at I (Nov.

6, 2025); see also Response to Petition, FCC v. AT&T

Inc., No. 25-406, at i (Dec. 5, 2025). These formulations place the constitutionality of the FCC’s forfeiture scheme—not merely the waiver issue—directly

before the Court, which is why petitioners address the

merits at length in their brief. See Op. Br. 20–24.

The Fifth Circuit correctly resolved the merits in

the AT&T case, holding that the FCC’s “in-house adjudication[s] violated the Constitution by denying

15

[AT&T] an Article III decisionmaker and a jury trial.”

AT&T, 149 F.4th at 494. The government does not

challenge that holding; it “does not seek review” of it,

see FCC Pet. 7, even though it asks the Court to decide

whether the relevant provisions of the Communications Act “are consistent with the Seventh Amendment and Article III,” id. at I. The government’s decision not to “contes[t] the point” is well founded, because Jarkesy’s application to FCC forfeiture proceedings is straightforward. Op. Br. 20–21; see Jarkesy,

603 U.S. at 200 (Sotomayor, J., dissenting) (acknowledging that the FCC’s civil penalty regime would be

affected by Jarkesy).

The Seventh Amendment guarantees “the right of

trial by jury” in “Suits at common law.” U.S. Const.

amend. VII. Jarkesy confirmed that this right “extends to” all federal suits not within equity or admiralty jurisdiction, including statutory claims that are

“legal in nature.” 603 U.S. at 122 (quotation marks

omitted). Courts consider both the nature of “the

cause of action and the remedy it provides” in determining whether a suit is legal, with the remedy being

the “more important” factor. Id. at 123 (quotation

marks omitted).

Here, the FCC imposed civil penalties on petitioners for allegedly failing to take reasonable measures

to protect certain customer data. See 47 U.S.C.

§ 503(b)(4). Civil penalties are “a type of remedy at

common law that could only be enforced in courts of

law.” Jarkesy, 603 U.S. at 123 (quotation marks omitted). They are intended to “punish or deter,” ibid., as

reflected in the statutory factors the FCC must consider, “which instruct the Commission to set penalties

by reference to ‘the nature, circumstances, extent, and

16

gravity of the violation’ as well as the violator’s ‘degree

of culpability,’” AT&T, 149 F.4th at 498 (quoting 47

U.S.C. § 503(b)(2)(E)). The punitive nature of the penalties is “all but dispositive” of the Seventh Amendment’s applicability. Jarkesy, 603 U.S. at 123; see also

Tull, 481 U.S. at 422–25 (civil penalties under the

Clean Water Act were “punitive” and “traditionally

available only in a court of law”).

The “close relationship” between the charge

against petitioners and the common law confirms that

conclusion. Jarkesy, 603 U.S. at 125. The FCC’s claim

that petitioners failed to take “reasonable measures”

to protect data “is analogous to common law negligence.” AT&T, 149 F.4th at 498. Both types of claims

“target the same basic conduct,” Jarkesy, 603 U.S. at

125, by asking whether the party breached a duty to

refrain from unreasonable actions that might harm

others. Compare 47 U.S.C. § 222(a) (imposing a “duty

to protect the confidentiality of” CPNI), and 47 C.F.R.

§ 64.2010(a) (“carriers must take reasonable

measures”), with Air & Liquid Sys. Corp. v. DeVries,

586 U.S. 446, 452 (2019) (negligence imposes a “‘duty

to exercise reasonable care’ on those whose conduct

presents a risk of harm to others”).

Nor does the public-rights exception to Article III

adjudication salvage the FCC’s proceedings. That exception is confined to a narrow “class of cases” falling

within well-defined “historic categories,” like the collection of government revenue, immigration, tribal relations, public-land administration, and the granting

of public benefits, pensions, and patent rights.

Jarkesy, 603 U.S. at 128, 130. This case does not fit

within any of those categories. See AT&T, 149 F.4th

at 500–02. Under Jarkesy, the Constitution therefore

17

requires adjudication before a jury in an Article III

court.

There is good reason for this Court to address the

merits. Jarkesy’s application here is straightforward,

as the parties “apparently accep[t].” Op. Br. 24; see,

e.g., Groff v. DeJoy, 600 U.S. 447, 470 (2023) (rejecting

lower-court interpretation of Title VII that “both parties agree . . . is not right”); Reno v. Am.-Arab AntiDiscrimination Comm., 525 U.S. 471, 482 (1999) (similar); Chao v. Mallard Bay Drilling, Inc., 534 U.S. 235

(2002) (parties did not dispute certain regulations

were preempted). Moreover, whether the forfeiture

orders required adjudication before a jury in an Article III court is logically antecedent to the government’s claim that a hypothetical § 504(a) collection action suffices to satisfy that requirement.

A decision from this Court on the merits would

also promote the efficient resolution of this litigation.

The NALs here issued in February 2020, and the April

2024 forfeitures collectively imposed nearly $200 million in penalties on all four national carriers—penalties the carriers contend are unlawful in multiple respects. All four carriers promptly sought review. Yet

if this Court were to reject the government’s waiver

argument without addressing the merits, Verizon—

along with T-Mobile and Sprint—would face further

proceedings on remand to resolve those constitutional

questions. That would unnecessarily prolong cases

that have already been pending more than six years.

More broadly, lower courts are regularly tasked

with applying Jarkesy. See, e.g., Ortega v. Off. of the

Comptroller of the Currency, 155 F.4th 394, 409 (5th

Cir. 2025); Axalta Coating Sys. LLC v. FAA, 144 F.4th

18

467, 477 (3d Cir. 2025); In re Tsay JBR LLC, 136 F.4th

1176, 1179–81 (9th Cir. 2025); NLRB v. Starbucks

Corp., 159 F.4th 455, 474 (6th Cir. 2025). Additional

guidance from this Court would be valuable. Jarkesy

itself acknowledged that the Court’s public-rights doctrine is “an ‘area of frequently arcane distinctions and

confusing precedents.’” 603 U.S. at 130 (quoting

Thomas v. Union Carbide Agricultural Products Co.,

473 U.S. 568, 583 (1985)). Although the Fifth Circuit

and other courts applying Jarkesy have correctly recognized that the public-rights exception is limited to

historically defined categories, AT&T, 149 F.4th at

500–01, some courts have expressed uncertainty

about the doctrine’s contours, describing the Court’s

precedents as leaving “a theoretical scramble” and being “at war with itself.” Axalta Coating Sys., 144

F.4th at 482 (Bibas, J., concurring). This case provides an opportunity to clarify that framework. See,

e.g., Seven Cnty. Infrastructure Coal. v. Eagle Cnty.,

Colo., 605 U.S. 168, 179 (2025) (“reiterat[ing] and clarify[ing]” the proper standard “[i]n light of the continuing confusion and disagreement in the Courts of Appeals”).

The Seventh Amendment and Article III questions are squarely presented. The Court should resolve them.

III. The FCC’s Self-Adjudicated Proceedings

Illustrate The Need For A Jury Trial In An

Article III Court.

In these proceedings, the FCC acted as investigator, rulemaker, prosecutor, judge, and jury. The record illustrates why the Constitution promises that

civil penalties be imposed, if at all, before a jury in an

Article III court.

19

The FCC launched the investigations that culminated in these massive forfeitures in reaction to a May

2018 New York Times article describing criminal misconduct by a rogue sheriff in Missouri who had misappropriated the carriers’ location data through an unauthorized side program offered by a service provider.

See Jennifer Valentino-DeVries, Service Meant to

Monitor Inmates’ Calls Could Track You, Too, N.Y.

Times (May 10, 2018); see also Verizon Pet. App. 54a.

The FCC had known about that incident for months

before the article was published; a consumer advocacy

group raised it with the agency in August 2017.3 Yet

the FCC did not raise the issue with petitioners or

other carriers. It opened these enforcement proceedings only after the article—despite the fact that the

carriers had already terminated the offending provider’s access immediately after learning of it. E.g.,

FCC Pet. App. 7a (AT&T “promptly terminated” access); Verizon Pet. App. 58a (Verizon terminated access May 11, 2018).

While the FCC’s investigation was pending, one

Commissioner publicly urged the agency in the New

York Times to “act swiftly and decisively to stop” what

he deemed to be “illegal and dangerous pay-to-track

practices.” Geoffrey Starks, Why It’s So Easy for a

Bounty Hunter to Find You, N.Y. Times (Apr. 2, 2019).

3

See Joint Application of Securus Investment Holdings, LLC et

al., Letters from Wright Pet’rs, WC Dkt. No. 17-126 (Aug. 4,

2017), https://www.fcc.gov/ecfs/document/10804689721322/1; id.

(Aug.

5,

2017),

https://www.fcc.gov/ecfs/document/

10805871110099/1. While the FCC acknowledged the concerns,

it nevertheless approved the application at issue. Joint Application of Securus Inv. Holdings, LLC, 32 FCC Rcd 9564, at ¶ 28

(2017), https://www.fcc.gov/ecfs/document/1030133504695/1.

20

Then, in the NALs, the FCC adopted—for the first

time—a sweeping and erroneous interpretation of the

statutory term CPNI that it proposed to apply to the

carriers’ past conduct, even though this interpretation

contradicted the FCC’s prior guidance. Compare, e.g.,

AT&T, Inc., Notice of Apparent Liability for Forfeiture and Admonishment, 35 FCC Rcd 1743, at

¶¶ 33–41 (2020) (AT&T NAL defining CPNI to include

“customer location information” regardless of whether

it relates a covered voice call) (“AT&T NAL”), with In

re Implementation of the Telecomms. Act of 1996, Declaratory Ruling, 28 FCC Rcd 9609, at ¶¶ 22, 28 &

n.66 (2013) (FCC order defining CPNI to include “the

location of the device at the time of the calls” and the

“location of a customer’s use of a telecommunications

service,” but not information that “pertains to the device’s access of the carrier’s data network”). The NALs

also proposed penalties far exceeding the statutory

cap, e.g., AT&T NAL ¶ 81, which (adjusted for inflation at the time of the Orders) limited penalties “for

any single act or failure to act” to just $2,048,915. 47

U.S.C. § 503(b)(2)(B).

Two Commissioners issued press-release-style

statements alongside the NALs. Before receiving the

carriers’ responses, one declared that the carriers’

conduct was “a violation of the law,” criticized the proposed fines as “too small,” and emphasized her efforts

to “t[ake] on this issue on my own.” AT&T NAL, 35

FCC Rcd at 1777–78 (statement of Commissioner

Rosenworcel). Another asserted that “there should be

no dispute” about the critical statutory question, that

the carriers committed “serious violations,” and that

“[s]ignificant penalties are more than justified” and in

some cases “should be higher.” Id. at 1779–84 (statement of Commissioner Starks).

21

Unsurprisingly, when the FCC ultimately ruled

on the proposed forfeitures, a majority rejected all of

carriers’ merits arguments and unilaterally imposed

nearly $200 million in total penalties, finding (based

on the new CPNI definition) that they “willfully and

repeatedly violated” the Communications Act and

FCC rules and that an “upward adjustment” was warranted for purportedly “egregious” conduct. FCC Pet.

App. 105a–107a, 131a; Verizon Pet. App. 122a–124a,

138a. The FCC itself “ORDERED” that each carrier

“IS LIABLE” and required payment of tens of millions

of dollars “within thirty (30) calendar days after the

release of this Forfeiture Order.” FCC Pet. App. 131a;

Verizon Pet. App. 138a–139a. Commissioners Carr

and Simington dissented in each case, with Commissioner Carr objecting that the orders “plainly fall outside the scope of the FCC’s section 222 authority,”

“fin[d] no support in the Communications Act or FCC

precedent,” and imposed penalties “inconsistent with

the law and basic fairness.” FCC Pet. App. 137a–142a

(dissenting statement of Commissioner Carr); see also

FCC Pet. App. 143a–145a (dissenting statement of

Commissioner Simington); Verizon Pet. App. 143a–

151a.

The majority’s rationale for exceeding the statutory cap was especially noteworthy. The FCC itself

characterized each carrier’s conduct as a single, continuing failure to act—namely, failing to terminate or

adequately secure its location-based-service program,

which enabled customers to access valuable services

such as roadside assistance and medical alerts. E.g.,

FCC Pet. App. 100a; Verizon Pet. App. 106a. Yet instead of applying the statutory cap, the FCC treated

“each unique relationship” with a service provider as

a separate violation. See FCC Pet. App. 104a–105a;

Verizon Pet. App. 115a–116a. It further asserted that

22

it “could well have chosen to look to the total number

of . . . subscribers when determining the number of violations,” and that, given the “tens of millions of consumers” at issue, the penalties could have been “significantly higher.” FCC Pet. App. 108a; Verizon Pet.

App. 116a–117a. This claimed authority to impose

hundreds of trillions of dollars in penalties on the carriers—more than the entire world’s GDP—highlights

the dangers of an agency that investigates, charges,

and adjudicates its own case.

These dubious forfeiture proceedings underscore

why civil penalties must be imposed, if at all, before

an independent judge and jury in an Article III

court—and why the carriers could not simply ignore

the FCC findings, refuse to pay, forgo Hobbs Act review, and wait up to five years to see whether and

where DOJ might file a § 504(a) collection action. The

penalties were imposed without judicial involvement.

The FCC investigated and prosecuted the cases, interpreted the governing statutes and regulations, adjudicated liability after making public comments, and

imposed historically large punishments. The jurytrial right exists to guard against these sorts of dangers, serving as “an inestimable safeguard against the

corrupt or overzealous prosecutor and against the

compliant, biased, or eccentric judge.” Duncan v. Louisiana, 391 U.S. 145, 156 (1968).

CONCLUSION

The Court should hold that the forfeiture orders

violate the Seventh Amendment and Article III and,

therefore, affirm the Fifth Circuit and reverse the Second Circuit.

23

Respectfully submitted.

HELGI C. WALKER

Counsel of Record

RUSSELL B. BALIKIAN

GIULIANA CIPOLLONE

ALY COX

GIBSON, DUNN & CRUTCHER LLP

1700 M STREET, N.W.

WASHINGTON, D.C. 20036

(202) 955-8500

hwalker@gibsondunn.com

Counsel for Amicus Curiae

February 25, 2026