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

Nos. 25-406 and 25-567

IN THE

Supreme Court of the United States

_____________________________________________________

FEDERAL COMMUNICATIONS COMMISSION, et al.,

Petitioners,

v.

AT&T, INC.,

Respondent.

_____________________________________________________

VERIZON COMMUNICATIONS INC.,

Petitioner,

v.

FEDERAL COMMUNICATIONS COMMISSION, et al.,

Respondents.

_____________________________________________________

ON WRITS OF CERTIORARI TO THE UNITED STATES COURTS

OF APPEALS FOR THE FIFTH AND SECOND CIRCUITS

BRIEF OF AMICUS CURIAE NATIONAL

RELIGIOUS BROADCASTERS IN SUPPORT OF

AT&T, INC. AND VERIZON COMMUNICATIONS

INC.

February 25, 2026

MICHAEL P. FARRIS

Counsel of Record

SARAH E. SIU

NATIONAL RELIGIOUS

BROADCASTERS

800 Maryland Avenue NE

Washington, D.C. 20002

571-359-6000

mfarris@nrb.org

ssiu@nrb.org

Counsel for Amicus Curiae

National Religious Broadcasters

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ............................................. i

TABLE OF AUTHORITIES ...................................... ii

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

SUMMARY OF ARGUMENT.................................... 1

ARGUMENT .............................................................. 3

I. AN IN-DEPTH LOOK AT THE PATHS FOR

FCC ENFORCEMENT ................................... 3

II. ALL VARIANTS FOR FCC FORFEITURE

IMPOSITION AND COLLECTION VIOLATE

BOTH ARTICLE III AND THE SEVENTH

AMENDMENT. ............................................. 11

A. The communications companies’ Article III

rights are not waivable because the

statutory scheme implicates structural

interests. ................................................... 13

B. Even if the parties’ Article III and Seventh

Amendment rights were waivable, the

FCC’s forfeiture collection scheme does not

allow for waiver because it denies private

parties their rights in the first instance

without an opportunity to consent or

refuse. ....................................................... 17

C. The early cases relied on by the

government are inapposite. ..................... 19

CONCLUSION ......................................................... 24

ii

TABLE OF AUTHORITIES

Page

Cases

AT&T Corp. v. FCC, 323 F.3d 1081 (D.C. Cir. 2003)

........................................................................... 5, 6

AT&T, Inc. v. FCC, 149 F.4th 491 (5th Cir. 2025),

cert. granted sub nom. FCC v. AT&T, Inc., No. 25406, 2026 WL 73092 (U.S. Jan. 9, 2026) ............ 16

Atlas Roofing Co. v. Occupational Safety and Health

Review Comm’n, 430 U.S. 442 (1977) ................ 17

Beers v. Beers, 4 Conn. 535 (1823) ........................... 20

Buckley v. Valeo, 424 U.S. 1 (1976) ......................... 14

Capital Traction Co. v. Hof, 174 U.S. 1 (1899)…….

............................................................19, 20, 21, 22

Commodity Futures Trading Com’n v. Schor, 478

U.S. 833 (1986)....................... 14, 15, 16, 17, 18, 19

Den ex dem. Murray’s Lessee v. Hoboken Land &

Improvement Co., 59 U.S. 272 (1855) ........... 14, 24

Dougan v. FCC, 21 F.3d 1488 (9th Cir. 1994) ........... 5

FCC v. Prometheus Radio Project, 592 U.S. 414

(2021) ................................................................. 4, 7

Glidden Co. v. Zdanok, 370 U.S. 530 (1962) ........... 14

Heckers v. Fowler, 69 U.S. 123 (1864) ..................... 18

In re BP RE, L.P., 735 F.3d 279 (5th Cir. 2013) ..... 15

Kimberly v. Arms, 129 U.S. 512 (1889) ................... 18

iii

Lehigh Valley R. Co v. Meeker, 211 F. 785 (3d Cir.

1913), rev’d on other grounds, 236 U.S. 412

(1915), and rev’d on other grounds, 236 U.S. 434

(1915) ................................................................... 23

Meeker v. Lehigh Valley Railroad Co., 236 U.S. 412

(1915) ............................................................. 22, 23

N. Pipeline Constr. Co. v. Marathon Pipe Line Co.,

458 U.S. 50 (1982) ................................... 13, 14, 17

Peninsula Commc’ns, Inc., 335 F. Supp. 2d 1013 (D.

Alaska 2004) ................................................... 9, 10

Pleasant Broadcasting v. FCC, 564 F.2d 496 (D.C.

Cir. 1977)............................................................... 5

SEC v. Jarkesy, 603 U.S. 109 (2024)………………….

.................................. 2, 3, 11, 13, 14, 16, 19, 22, 24

Stern v. Marshall, 564 U. S. 462 (2011) .................. 14

Thomas v. Union Carbide Agr. Prods. Co., 473 U.S.

568 (1985) ............................................................ 18

Tull v. United States, 481 U.S. 412 (1987) .............. 24

United States ex rel. Toth v. Quarles, 350 U.S. 11

(1955) ................................................................... 17

United States FCC v. Summa Corp., Las Vegas, Nev.,

447 F. Supp. 923 (D. Nev. 1978)..................... 9, 10

United States v. Any & All Radio Station

Transmission Equip., 207 F.3d 458 (8th Cir.

2000) ...................................................................... 8

United States v. Baxter, 841 F. Supp. 2d 378 (D. Me.

2012), aff’d, No. 12-1196, 2012 WL 13228558 (1st

Cir. Sept. 10, 2012) ............................................... 8

iv

United States v. Daniels, 418 F. Supp. 1074 (D.S.D.

1976) ...................................................................... 9

United States v. Dean, No. 3:06CV543/LAC/MD,

2008 WL 795307 (N.D. Fla. Mar. 24, 2008) ......... 8

United States v. Dudley, No. 4:18-cv-1756-ACA, 2020

WL 4284052 (N.D. Ala. July 27, 2020) ................ 9

United States v. Evergreen Media Corp, of Chicago,

AM, 832 F. Supp. 1183 (N.D. Ill. 1993) .......... 9, 10

United States v. Frank, No. A-10-CA-957-SS, 2011

WL 13185993 (W.D. Tex. June 23, 2011), aff’d,

487 F. App’x 931 (5th Cir. 2012) ........................ 10

United States v. Hodson Broadcasting, 666 F. App’x

624 (9th Cir. 2016) .................................7, 8, 10, 11

United States v. Mapa Broadcasting, LLC, No.

CIV.A. 03-2149, 2004 WL 1146063 (E.D. La. May

17, 2004) ................................................................ 9

United States v. Metzger, No. 6:07-cv-1815-Orl22KRS, 2008 WL 10671229 (M.D. Fla. Apr. 6,

2009) ................................................................ 9, 10

United States v. Ne. Commc’ns of Wisconsin, Inc.,

608 F. Supp. 2d 1049 (E.D. Wis. 2008) ................ 8

United States v. Neely, 595 F. Supp. 2d 662 (D.S.C.

2009) ...................................................................... 7

United States v. Pennington, No. 5:21-CV-198-REWMAS, 2023 WL 2542592 (E.D. Ky. Mar. 16, 2023)

......................................................................... 9, 10

United States v. Rhodes, No. CV 21-110-M-DLC,

2024 WL 1174510 (D. Mont. Mar. 19, 2024)........ 8

v

United States v. Rowland, No. 603-CV-106-ORL31DAB, 2003 WL 22319074 (M.D. Fla. July 8,

2003) .................................................................... 11

United States v. Rust Commc’ns Group, Inc., 425 F.

Supp. 1029 (E.D. Va. 1976) ............................ 9, 10

United States v. Sutton, No. 2:23-CV-02100-SOHMEF, 2024 WL 2926594 (W.D. Ark. Mar. 27,

2024), report and recommendation adopted, No.

2:23-CV-02100, 2024 WL 2922991 (W.D. Ark.

June 10, 2024) ....................................................... 8

United States v. Unipoint Techs., Inc., 159 F. Supp.

3d 262 (D. Mass. 2016) ......................................... 9

United States v. WHAS, Inc., 385 F.2d 784 (6th Cir.

1967) ................................................................ 8, 10

United States v. Will, 449 U.S. 200 (1980) .............. 13

Waldman v. Stone, 698 F.3d 910 (2012).................. 15

Wellness Int’l Network, Ltd. v. Sharif, 575 U.S. 665

(2015) ................................................................... 15

Statutes

18 U.S.C. § 1343 ....................................................... 24

28 U.S.C. § 2342 ......................................................... 5

47 U.S.C. § 402 ................................................... 2, 4, 5

47 U.S.C. § 503……………………………………………

................ 1, 2, 3, 4, 7, 12, 16, 18, 19, 20, 21, 22, 24

47 U.S.C. § 504 .................. 1, 2, 5, 6, 7, 8, 9, 10, 11, 21

47 U.S.C. § 509 ......................................................... 24

vi

Act of Feb. 19, 1895, c. 100 §§ 1, 2 (28 Stat. 668) ... 20

Act of Feb. 22, 1867, c. 63, § 1 (14 Stat. 401) .......... 20

Act to Extend the Jurisdiction of Justices of the

Peace in the Recovery of Debts in the District of

Columbia, 3 Stat. 743, §§ 1, 7, 15, 16 (Mar. 1,

1823) (Rev. Stat. D.C. §§ 775, 776, 997, 1006,

1009–17, 1027) .............................................. 19, 20

Other Authorities

1 Montesquieu, The Spirit of Laws (10th ed. 1773) 14

FCC’s Pet. for Cert., FCC v. AT&T, No. 25-406 (U.S.

Oct. 2, 2025) .................................................. 12, 16

The Federalist No. 47 (H. Lodge ed. 1888) (J.

Madison) .............................................................. 13

The Federalist No. 78 (A. Hamilton) ....................... 13

Constitutional Provisions

U.S. Const. amend. VII ...............................2, 6, 13, 17

U.S. Const. art. III, § 1………………………………….

.............................. 2, 3, 6, 12, 13, 14, 15, 17, 21, 23

U.S. Const. art. III, § 2 ............................................. 15

1

INTEREST OF AMICUS CURIAE

National Religious Broadcasters (NRB) is a nonpartisan association of Christian broadcasters united

by their shared purpose of proclaiming Christian

teaching and promoting biblical truths. NRB’s 1,035

members reach a weekly audience of approximately

141 million American listeners, viewers, and readers

through radio, television, the Internet, and other

media.1

Since its founding in 1944, NRB has worked to

protect its members against efforts to infringe on

their constitutional rights. Many of NRB’s members

are regulated by the Federal Communication

Commission (FCC) and believe that it is important to

preserve the rights of broadcasters to have any

potential fines imposed by the FCC be determined by

an Article III tribunal and consistently with the right

of trial by jury.

SUMMARY OF ARGUMENT

An in-depth look at the two paths for FCC

enforcement makes clear that 47 U.S.C. §§ 503 and

504 deprive affected parties of their Article III and

jury rights. First, under 47 U.S.C. § 503(b)(3)(a), the

Commission may choose to provide notice and an

opportunity for a formal hearing before the FCC or an

administrative law judge. Such decisions are only

appealable to a federal Court of Appeals under a

1 Pursuant to Supreme Court Rule 37.6, counsel for amicus

curiae certifies that no counsel for any party authored this brief

in whole or in part. No person or entity other than NRB

furnished any monetary contribution for the preparation of this

brief.

2

“deferential” “reasonableness” standard. If a party

fails to pay a forfeiture penalty, Section 503(b)(3)(B)

allows the Justice Department to initiate collection

proceedings, again with a statutory proviso that

precludes de novo review. Alternatively, the FCC may

choose the second path found in Section 503(b)(4),

issuing a notice of apparent liability (NAL), offering

one opportunity to oppose the imposition of any

penalty in writing, and then finalizing the NAL. From

here, courts have ruled that the only way a party may

unilaterally seek review of a NAL is by prepaying the

penalty and appealing to a federal Court of Appeals

under 47 U.S.C. § 402(a).

An aggrieved party never has the right to appeal

any form of an FCC decision, formal or informal, to a

district court for a de novo trial. Only if the forfeiture

is not paid, and only if the FCC and Justice

Department choose to pursue collection, the Justice

Department may file a recovery action in federal

district court under Section 504(a). Under the

widespread practice of district courts, the FCC

determination of the amount of the penalty—or its

imposition of a penalty at all—does not, and cannot,

receive a de novo review in this new action.

All variants for FCC forfeiture imposition and

collection violate both Article III and the Seventh

Amendment. The government concedes that, like in

SEC v. Jarkesy, the imposition of forfeiture penalties

under Section 503 constitutes a suit at common law

that is subject to the Seventh Amendment and Article

III, and thus that the current action is

unconstitutional. The mere possibility of a de novo

3

debt recovery trial if the communications companies

did not comply with the FCC’s forfeiture order and the

government chose to file a separate collection action

does not transform an unconstitutional proceeding

into a constitutional one for two reasons. First, Article

III prevents punitive fines from being imposed by an

executive agency, and this jurisdictional matter

cannot be waived. Second, any argument that Article

III rights are waived fails because a defendant does

not ever have a unilateral right to demand a true de

novo proceeding. Moreover, the cases cited by the

government are so different from this case as to

further reinforce the controlling nature of Jarkesy.

ARGUMENT

I. AN IN-DEPTH LOOK AT THE PATHS FOR

FCC ENFORCEMENT

There are two different paths for the

determination of forfeitures imposed for violations by

the Federal Communications Commission, but there

are various alternatives for ultimate resolution for

each path.

Formal hearing. First, under 47 U.S.C. § 503

(b)(3)(A), “[a]t the discretion of the Commission, a

forfeiture penalty may be determined against a

person under this subsection after notice and an

opportunity for a hearing before the Commission or

an administrative law judge.” The Commission has

two forms of discretion for this path. First, it can

decide whether to grant a hearing at all. Second, it

can decide whether to hear the matter itself or to

assign it to an administrative law judge.

4

The decision from such a hearing may be appealed

to a United States Court of Appeals under 47 U.S.C.

§ 402(a) under a “deferential” standard where a “court

simply ensures that the agency has acted within a

zone of reasonableness and, in particular, has

reasonably considered the relevant issues and

reasonably explained the decision.” FCC v.

Prometheus Radio Project, 592 U.S. 414, 423 (2021).

If, after such a hearing (whether appealed to a

court of appeals or not), a person fails to pay the

forfeiture penalty, Section 503(b)(3)(B) expressly

provides that the matter shall be turned over to the

Justice Department for collection. That section limits

the scope of review in collection proceedings: “In such

action, the validity and appropriateness of the final

order imposing the forfeiture penalty shall not be

subject to review.”

Thus, if the FCC uses its unfettered discretion to

give a person a formal hearing, said person never gets

a trial—jury or non-jury—on the merits in an Article

III court.

Informal determination. The second path is

found in Section 503(b)(4). Again, the Commission

has total discretion to use this path in lieu of the

hearing alternative already discussed. Here the

process is informal and there is no hearing of any

kind. The FCC issues a notice of apparent liability

(NAL). The person may respond once in writing as to

“why no forfeiture penalty should be imposed.” Id.

After receiving any one-time input from the

affected party, the Commission ultimately finalizes

the NAL. This determination may be appealed to a

5

court of appeals, although this appellate path is not

enumerated in this section. Indeed, the FCC once

contended that the only method for judicial review

was for the affected party to commence an action in a

district court under Section 504(a). The FCC raised

this previous view despite the fact that the plain

language of this section only gives authority to the

Justice Department to commence litigation on behalf

of the Commission. The FCC argued that there was

an implied right for an aggrieved party to likewise

initiate litigation under Section 504(a).

For a season, the FCC was successful in getting

the District of Columbia Circuit and the Ninth Circuit

to adopt its preferred “implied right” reading of

Section 504. Dougan v. FCC, 21 F.3d 1488, 1491 (9th

Cir. 1994) (“We hold that 47 U.S.C. § 504(a) vests

exclusive jurisdiction in the district courts to hear

enforcement suits by the government, and suits by

private individuals seeking to avoid enforcement.”);

see also Pleasant Broadcasting v. FCC, 564 F.2d 496,

500 (D.C. Cir. 1977).

However, in AT&T Corp. v. FCC, 323 F.3d 1081,

1084 (D.C. Cir. 2003), the D.C. Circuit rejected the

FCC’s reading of the statutory scheme. Instead, the

D.C. Circuit concluded that the general provision of

47 U.S.C. § 402(a) was the only available path for an

aggrieved party to unilaterally seek review of an

NAL. Section 402(a) permits an aggrieved party to

commence a “proceeding to enjoin, set aside, annul, or

suspend any order of the Commission” in a court of

appeals under 28 U.S.C. § 2342(1).

It is now an accepted practice that in order to seek

review of an NAL, the aggrieved party must pay the

6

full amount of the forfeiture. This prepayment

requirement is not set out in the statute; rather, it has

arisen as a result of judicial interpretation. Initially,

the FCC objected to the availability of this means of

review even with prepayment. But the D.C. Circuit

rejected the FCC’s position, creating both the path for

review and the prepayment requirement:

Because section 504(a) says nothing about

district court jurisdiction where the forfeiture

has already been recovered, it appears to leave

court of appeals jurisdiction intact where, as

here, the forfeiture subject has paid the

assessed penalty.

AT&T Corp., 323 F.3d at 1084.

An aggrieved party never has the right to appeal

any form of an FCC decision, formal or informal, to a

district court for a de novo trial. That option is left

entirely to the executive branch’s discretion. Only

when a forfeiture has not been paid is there any

opportunity, should the FCC and Justice Department

decide to pursue the matter, for a trial in a federal

district court. Section 504(a) authorizes United States

Attorneys to “to prosecute for the recovery of

forfeitures under this chapter.” This section further

specifies “[t]hat any suit for the recovery of a

forfeiture imposed pursuant to the provisions of this

chapter shall be a trial de novo.”

However, in actual practice—especially in more

recent years—the proceedings that take place under

Section 504(a) are not truly de novo on the key

questions for the purposes of determining the Article

III and Seventh Amendment questions presented in

7

this case—the liability of the affected party and the

amount of the penalty. The practice of district courts

is to review, under a deferential standard, the

reasonableness of the forfeiture amount imposed by

the FCC—essentially the same “deferential” standard

recited by this Court in FCC v. Prometheus Radio

Project where FCC decisions are reviewed on appeal

for “reasonableness”:

Hodson also challenges the amount of the

forfeiture. The determination of the amount of

a forfeiture is committed to the discretion of the

FCC. See 47 U.S.C. § 503(b)(2)(E). Review of a

forfeiture amount is limited to whether it

reflects a reasonable application of the statute

and the “adjustment criteria” set out in

§ 1.80(II) of the FCC's rules. See Grid Radio v.

FCC, 278 F.3d 1314, 1322–23 (D.C. Cir.

2002). . . . The FCC’s decision not to adjust

downward was reasonable and not an abuse of

discretion.

United States v. Hodson Broadcasting, 666 F. App’x

624, 628 (9th Cir. 2016).

The Ninth Circuit

specifically rejected the idea that summary judgment

in a Section 504 proceeding was inappropriate even

though the statute called for a trial de novo. Id. at 627.

Thus, it is clear that any review—whether under

Section 503 or 504—of the amount of forfeiture is

under a deferential appellate standard and not an

independent determination of the appropriate

amount of the penalty to be imposed. Hodson, 666 F.

App’x at 627; see also, e.g., United States v. Neely, 595

F. Supp. 2d 662, 667 (D.S.C. 2009) (holding in Section

504 recovery action that forfeiture amount was

“reasonable on its face.”); United States v. Baxter, 841

8

F. Supp. 2d 378, 392 (D. Me. 2012), aff’d, No. 12-1196,

2012 WL 13228558 (1st Cir. Sept. 10, 2012) (same);

United States v. Sutton, No. 2:23-CV-02100-SOHMEF, 2024 WL 2926594, at *11 (W.D. Ark. Mar. 27,

2024), report and recommendation adopted, No. 2:23CV-02100, 2024 WL 2922991 (W.D. Ark. June 10,

2024) (holding, in a Section 504 recovery action, that

summary judgment was appropriate, saying: “The

Court assumes the truth of these statements but

concludes that they do not create a material issue of

fact about the reasonableness of the amount of the

forfeiture.”); United States v. Ne. Commc’ns of

Wisconsin, Inc., 608 F. Supp. 2d 1049, 1060 n.4 (E.D.

Wis. 2008) (discussing, in a Section 504 recovery

action, the “soundness” of the FCC’s forfeiture

amount);

United

States

v.

Dean,

No.

3:06CV543/LAC/MD, 2008 WL 795307, at *4 (N.D.

Fla. Mar. 24, 2008) (holding, in a Section 504 recovery

action, that “[t]he findings and reasoning of the

Forfeiture Order support the forfeiture and the

amount thereof.”); United States v. Rhodes, No. CV

21-110-M-DLC, 2024 WL 1174510, at *3 (D. Mont.

Mar. 19, 2024) (following the Ninth Circuit in Hodson

in a Section 504 recovery action); United States v.

WHAS, Inc., 385 F.2d 784, 786 (6th Cir. 1967)

(affirming ruling in Section 504 recovery action,

relying on “the facts as the Commission represents

them to be” and finding FCC interpretation

“permissible”); United States v. Any & All Radio

Station Transmission Equip., 207 F.3d 458, 461 (8th

Cir. 2000) (affirming the district court’s ruling that

district courts lack “jurisdiction to determine the

validity of all final orders of the FCC”).

.

9

Only a few district courts have found, in “de novo”

proceedings under Section 504, that they had the

authority to determine the amount of the forfeiture

award. United States v. Daniels, 418 F. Supp. 1074,

1080–81 (D.S.D. 1976); United States v. Rust

Commc’ns Group, Inc., 425 F. Supp. 1029, 1031 (E.D.

Va. 1976); United States FCC v. Summa Corp., Las

Vegas, Nev., 447 F. Supp. 923, 927 (D. Nev. 1978);

United States v. Evergreen Media Corp, of Chicago,

AM, 832 F. Supp. 1183, 1184 (N.D. Ill. 1993);

Peninsula Commc’ns, Inc., 335 F. Supp. 2d 1013, 1017

(D. Alaska 2004); United States v. Mapa

Broadcasting, LLC, No. CIV.A. 03-2149, 2004 WL

1146063, at *6 (E.D. La. May 17, 2004); United States

v. Metzger, No. 6:07-cv-1815-Orl-22KRS, 2008 WL

10671229, at *4 (M.D. Fla. Apr. 6, 2009); United

States v. Unipoint Techs., Inc., 159 F. Supp. 3d 262,

273 (D. Mass. 2016); United States v. Dudley, No.

4:18-cv-1756-ACA, 2020 WL 4284052, at *4 (N.D. Ala.

July 27, 2020); United States v. Pennington, No. 5:21CV-198-REW-MAS, 2023 WL 2542592, at *3 (E.D. Ky.

Mar. 16, 2023).

The bulk of the cases have gone the other

direction, refusing to make a true de novo

determination of the amount of the penalty in Section

504 cases. In fact, one district court complained that

its hands were tied in assessing forfeiture amounts.

Any doubts the Court has about the

reasonableness of the forfeiture penalty stem

from its belief $10,000 is too low in light of

Frank’s willful and continuous violation of the

law. This Court would have imposed a

significantly greater penalty if it had the

discretion to do so; as the Court suspects a jury

10

would, if asked to decide the issue. However, as

it does not appear to be within the Court’s

power to increase the size of the FCC’s

requested forfeiture penalty, the Court is

constrained merely to conclude the penalty

amount is not unreasonably high.

United States v. Frank, No. A-10-CA-957-SS, 2011

WL 13185993, at *3 (W.D. Tex. June 23, 2011), aff’d,

487 F. App’x 931 (5th Cir. 2012).

A discernable pattern has developed. The outlier

cases which treat the determination of the amount of

forfeiture as a de novo matter in Section 504 cases are

few in number and of older vintage. Most of the few

cases where district courts found that they had the

duty to make an independent determination of the

forfeiture amount were decided in 2009 or earlier.

Moreover, Peninsula Communications from Alaska

and Summa Corp. from Nevada must be disregarded

because the Ninth Circuit subsequently adopted the

opposite conclusion in Hodson. And other cases rely

on these out-of-date cases without addressing more

recent authority, see, e.g., Pennington, 2023 WL

2542592, at *4 (citing Peninsula Commc’ns), or cite no

cases at all, ignoring other binding, conflicting

authority, see e.g., Evergreen Media, 832 F. Supp. at

1184 (overlooking WHAS, Inc., 385 F.2d at 786).

Moreover, aside from two cases where the court

vacated the FCC order in its entirety, Metzger and

Rust, even these district courts never deviated from

the forfeiture amount determined by the FCC.

The cases that use the deferential standard of

reasonableness are more numerous and generally

more recent, dating from 2004 to 2024. They also

11

include the only court of appeals decision directly on

the issue of the forfeiture amount’s standard of

review, Hodson, decided in 2016. The prevailing

current practice is that while the collection action

may perhaps proceed as a trial de novo as to the

timeliness of the collection action or other elements

unique to debt recovery, the FCC determination of the

amount of a penalty does not, and cannot, receive a de

novo review.

The very name of the proceeding, “recovery of a

forfeiture penalty,” highlights the constitutional

problem in the scheme. The government treats these

proceedings as “seeking recovering [sic] of the debt

owed by [the defendant] to the Government.” United

States v. Rowland, No. 603-CV-106-ORL-31DAB,

2003 WL 22319074, at *3 (M.D. Fla. July 8, 2003).

Debt recovery is a radically different kind of trial than

a de novo determination of underlying liability and

the amount of the penalty to be imposed. The amount

of the forfeiture is set by the FCC in all the various

forms of proceeding. In the usual and modern

approach, there is never a de novo determination of

the amount of the fine imposed. Indeed, suits under

Section 504(a) are, in the words of the statute, merely

suits for the “recovery of a forfeiture imposed

pursuant to the provisions of this chapter.”

II. ALL VARIANTS FOR FCC FORFEITURE

IMPOSITION AND COLLECTION VIOLATE

BOTH ARTICLE III AND THE SEVENTH

AMENDMENT.

In SEC v. Jarkesy, 603 U.S. 109, 125 (2024), this

Court held that when “civil penalties . . . are designed

to punish and deter, not to compensate,” the matter

12

must be decided by an Article III court. The

controlling statute here, Section 503, repeatedly

refers to the imposition of a “forfeiture penalty.”

The plain facts of this case are that the FCC has

imposed a penalty on AT&T for $57,307,307 and upon

Verizon for $46,901,250 through an informal process

where the Commission alone has determined the

amount of the penalty. As things stand at the

moment, the Commission is seeking to collect over

$100 million in a manner that is facially

unconstitutional. In fact, the United States has

admitted as much.

The government does not seek review of 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 publicrights exception to the Seventh Amendment

and Article III. But contrary to the decision

below, the statutory review scheme here

satisfies the Seventh Amendment and Article

III because Section 504(a) entitled respondent

to a de novo jury trial in district court before

the monetary penalty could be collected.

FCC’s Pet. for Cert. at 7, FCC v. AT&T, No. 25-406.

This is an admission that the current action is

unconstitutional. However, the government claims

that the mere possibility of a de novo trial excuses an

otherwise unconstitutional action. This assumes that

if the communications companies had refused to

comply with the FCC’s final order, and if the Justice

Department and FCC had decided to file a separate

13

debt recovery action, then this somehow transforms

an unconstitutional proceeding into a constitutional

one. This argument fails because Article III prevents

fines from being imposed by a federal agency. This is

a jurisdictional matter and cannot be waived. In

addition, the government’s waiver argument fails

because a defendant does not have, at any point, the

unilateral right to demand a true de novo proceeding.

The cases cited by the government as purported proof

of the propriety of this approach are so different from

this case that, rather than help the government, they

reinforce the applicability of Jarkesy’s reasoning here.

A. The communications companies’ Article

III rights are not waivable because the

statutory scheme implicates structural

interests.

“A Judiciary free from control by the Executive

and Legislature is essential if there is a right to have

claims decided by judges who are free from potential

domination by other branches of government.” United

States v. Will, 449 U.S. 200, 217–18 (1980). “Basic to

the constitutional structure established by the

Framers was their recognition that ‘[t]he

accumulation of all powers, legislative, executive, and

judiciary, in the same hands, whether of one, a few, or

many, and whether hereditary, self-appointed, or

elective, may justly be pronounced the very definition

of tyranny.’” N. Pipeline Constr. Co. v. Marathon Pipe

Line Co., 458 U.S. 50, 57–58 (1982) (quoting The

Federalist No. 47, p. 300 (H. Lodge ed. 1888) (J.

Madison)). As Alexander Hamilton wrote in The

Federalist Papers, “‘there is no liberty if the power of

judging be not separated from the legislative and

executive powers.’” The Federalist No. 78, at 466

14

(quoting 1 Montesquieu, The Spirit of Laws 181 (10th

ed. 1773)) (quoted by Jarkesy, 603 U.S. at 127).

To maintain the judiciary’s independence and

prevent “the encroachment or aggrandizement of [the

legislative or executive branches] at the expense of

the [judiciary],” Buckley v. Valeo, 424 U.S. 1, 122

(1976) (per curiam), the Constitution prohibits

Congress from “withdraw[ing] from judicial

cognizance any matter which, from its nature, is the

subject of a suit at the common law.” Den ex dem.

Murray’s Lessee v. Hoboken Land & Improvement Co.,

59 U.S. 272, 284 (1855). Such suits must be decided

by an Article III court if “brought within the bounds

of federal jurisdiction,” and the power to hear and

decide such cases “cannot be shared with the other

branches.” Jarkesy, 603 U.S. at 127 (quoting Stern v.

Marshall, 564 U. S. 462, 484 (2011)). Indeed, “the

presumption is in favor of Article III courts.” N.

Pipeline, 458 U.S. at 69, n. 23 (plurality opinion)

(citing Glidden Co. v. Zdanok, 370 U.S. 530, 548–549,

and n.21 (1962)).

Article III, § 1 serves a structural purpose as “an

inseparable element of the constitutional system of

checks and balances.” N. Pipeline, 458 U.S. at 58;

Commodity Futures Trading Com’n v. Schor, 478 U.S.

833, 850 (1986). “Article III, § 1 safeguards the role of

the Judicial Branch in our tripartite system by

barring

congressional

attempts

to

transfer

jurisdiction to non-Article III tribunals for the

purpose of emasculating constitutional courts.” Schor,

478 U.S. at 851 (cleaned up).

“To the extent that this structural principle is

implicated in any given case, the parties cannot by

15

consent cure the constitutional difficulty for the same

reason that the parties by consent cannot confer on

federal courts subject-matter jurisdiction beyond the

limitations imposed by Article III, § 2.” Id. at 850–51

(citations omitted). Rather, the Article III limitations

“serve institutional interests that the parties cannot

be expected to protect,” id. at 851, and which are “not

[theirs] to waive.” Waldman v. Stone, 698 F.3d 910,

918 (2012); see also Wellness Int’l Network, Ltd. v.

Sharif, 575 U.S. 665, 698 (2015) (Roberts, J.,

dissenting) (“Schor forbids a litigant from consenting

to a constitutional violation when the structural

component of Article III is implicated.”) (cleaned up);

In re BP RE, L.P., 735 F.3d 279, 287 (5th Cir. 2013)

(following Waldman). And “[p]arties by their consent

do not transform the function of adjudicating

controversies into the functions of creating rules or

enforcing judgments.” Wellness Int’l, 575 U.S. at 710

(Thomas, J., dissenting). In other words, a separationof-powers constitutional violation remains a

constitutional violation and an existential threat to

the stability of our tripartite government, regardless

of whether a party can be convinced to overlook it in

a given case.

“In determining the extent to which a given

congressional decision to authorize the adjudication

of Article III business in a non-Article III tribunal

impermissibly threatens the institutional integrity of

the Judicial Branch,” the Court weighs a number of

factors. Schor, 478 U.S. at 851. Among these factors

are “the extent to which the ‘essential attributes of

judicial power’ are reserved to Article III courts, and,

conversely, the extent to which the non-Article

III forum exercises the range of jurisdiction and

16

powers normally vested only in Article III courts” and

“the concerns that drove Congress to depart from the

requirements of Article III.” Id. Looking at each of

these factors makes clear that Section 503

impermissibly arrogates judicial power to the

executive branch and violates an unwaivable

structural right.

First, as explained in Section I, supra, Section 503

gives the FCC sole authority to direct the

adjudicatory process, choosing whether to grant the

opportunity for a hearing or reach its determination

on the papers, entirely usurping the traditional role

of an Article III judge to oversee and direct the

proceedings. The FCC also makes findings of fact and

conclusions of law, acting as judge and jury in

addition to prosecutor. No Article III judge ever

revisits these findings and conclusions de novo—at

most, they are reviewed for reasonableness, and

indeed, there is no guarantee that they would come

before a district court judge in any capacity.

Moreover, as the Fifth Circuit ruled and as the

government has conceded, the proceedings constitute

a suit at common law, AT&T, Inc. v. FCC, 149 F.4th

491, 498–99 (5th Cir. 2025), cert. granted sub nom.

FCC v. AT&T, Inc., No. 25-406, 2026 WL 73092 (U.S.

Jan. 9, 2026); FCC’s Pet. for Cert., supra, at 7, the end

result of which is a binding order issuing a penalty, a

legal remedy that historically lay within the sole

purview of courts of law. Jarkesy, 603 U.S. at 125;

AT&T, 149 F.4th at 498. Thus, the non-Article III

forum exercises the full “range of jurisdiction and

powers normally vested only in Article III courts.”

Schor, 478 U.S. at 851. And unlike in Schor, where

“the power of the federal judiciary to take jurisdiction

17

of [the] matters is unaffected,” district courts here are

powerless to assert their rightful jurisdiction. 478

U.S. at 855. These concerns go beyond mere potential

infringement of personal rights, constituting

nonwaivable structural concerns more akin to those

implicated in questions of subject matter jurisdiction.

Second, the government’s departure from Article

III’s requirements serves no identifiable purpose

beyond expediency. But expediency is not enough to

justify an incursion by the legislative and executive

branches into the judiciary’s core powers, and this

Court has rejected such attempts at justification on

multiple occasions. See, e.g., Atlas Roofing Co. v.

Occupational Safety and Health Review Comm’n, 430

U.S. 442, 450, n.7 (1977); United States ex rel. Toth v.

Quarles, 350 U.S. 11 (1955). A desire for

specialization cannot be permitted to supplant our

constitutional system of adjudication. N. Pipeline, 458

U.S. at 73.

Because the right to an Article III adjudication is

necessary to maintain the constitutionally mandated

separation of powers, it cannot be waived here.

B. Even if the parties’ Article III and Seventh

Amendment rights were waivable, the

FCC’s forfeiture collection scheme does

not allow for waiver because it denies

private parties their rights in the first

instance without an opportunity to

consent or refuse.

Even if the FCC’s forfeiture proceedings

implicated only personal rights, not the structural

principle outlined above, the FCC’s arguments would

18

still fail because waiver of the personal right to an

Article III adjudication and jury trial is not possible

under Section 503.

While personal rights may be waivable, waiver of

these rights requires consent by the party to whom

the right belongs. Thus in the context of special

masters and magistrate judges, the Court approved

delegation by an Article III court to a non-Article III

adjudicator with the consent of the parties, not simply

by statutory authorization. See Schor, 478 U.S. at

848–49 (citing Kimberly v. Arms, 129 U.S. 512 (1889);

Heckers v. Fowler, 69 U.S. 123 (1864)). In Schor, Schor

had also “indisputably waived any right he may have

possessed to the full trial of Conti’s counterclaim

before an Article III court” by “expressly demand[ing]

that Conti proceed on its counterclaim in the

reparations proceeding, rather than before the

District Court.” 478 U.S. at 849. And in Northern

Pipeline, the Court noted approvingly that before the

Bankruptcy Act was passed, “the referee had no

jurisdiction, except with consent, over controversies

beyond those involving property in the actual or

constructive possession of the court,” 458 U.S. at 80

n.31, ultimately ruling, as the Court later

characterized it, that “Congress may not vest in a nonArticle III court the power to adjudicate, render final

judgment, and issue binding orders in a traditional

contract action arising under state law, without

consent of the litigants, and subject only to ordinary

appellate review.” Thomas v. Union Carbide Agr.

Prods. Co., 473 U.S. 568, 584 (1985).

But here, there is no opportunity for parties like

Verizon and AT&T to refuse consent to the FCC’s

alternative forum and proceed in district court.

19

Section 503 gives two alternative paths, both of which

are in-house FCC adjudications, and the FCC

maintains total discretion over that decision. The

statute leaves no room for the other party to move the

proceedings to court. Therefore, there is no possibility

for consent here, unlike in Schor and other cases

where this court has approved alternative non-Article

III fora. Parties like AT&T and Verizon never waive

their right to an Article III forum or jury trial—the

statute deprives them of their right in toto.

C. The early cases relied on

government are inapposite.

by

the

Neither of the early cases cited by the government

in its petition for certiorari and response to Verizon’s

petition for certiorari bless the FCC’s encroachment

on the judiciary’s jurisdiction. This case is far more

analogous to Jarkesy, which should control the

outcome here.

Capital Traction Co. v. Hof. The earlier of the

FCC’s two cited precedents, Capital Traction Co. v.

Hof, 174 U.S. 1 (1899), involved a statute that, in

small disputes involving between $5 and $50,

guaranteed a full-fledged jury trial presided over by

an Article III judge at either party’s election after a

first pass review by a justice of the peace. Act to

Extend the Jurisdiction of Justices of the Peace in the

Recovery of Debts in the District of Columbia, 3 Stat.

743, § 1 (Mar. 1, 1823) (Rev. Stat. D.C. §§ 997, 1006);

id. § 7 (Rev. Stat. D.C. §§ 1027, 775, 776). For disputes

involving less than $50 but more than $20, either

party could also elect to have a twelve-member quasijury participate in the first-pass review with the

justice of the peace. Id. §§ 15–16 (Rev. Stat. D.C. §§

20

1009–17). Regardless of whether the justice of the

peace reviewed the matter alone or with a quasi-jury,

the first-pass proceedings had neither binding nor

persuasive effect on the subsequent trial. Hof, 174

U.S. at 31–33. The jurisdictional maximum was

raised to $100 in 1867, Act of Feb. 22, 1867, c. 63, § 1

(14 Stat. 401), and again to $300 in 1895. Act of Feb.

19, 1895, c. 100 §§ 1, 2 (28 Stat. 668).

There are at least three significant differences

between Hof and this case. First, as the Court

explained, jurisdiction over de minimis debts had

historically been vested in justices of the peace, with

the potential for appeal to a court of record or with

jury of six presided over by a justice of the peace. Hof,

174 U.S. at 18. The plaintiff in Hof also sought to

collect only what he was owed, not a punitive penalty.

In other words, these de minimis suits were not the

sort of suit at common law that had long been within

the sole purview of the judiciary. By contrast, Section

503 authorizes the FCC to issue massive penalties

ranging from tens of thousands of dollars to $3 million

per “act or failure to act,” putting this matter squarely

and undisputedly within the suits at common law

guaranteed an Article III court and jury trial by the

Constitution.

Second, under the statutory scheme in Hof, either

party could appeal and obtain a trial by a commonlaw jury overseen by an Article III judge. Therefore,

as the Court explained, “the right of trial by jury” was

preserved. Hof, 174 U.S. at 23, 32; see also id. at 28

(quoting Beers v. Beers, 4 Conn. 535, 538–40 (1823) (“I

am satisfied that the liberty of appeal preserves the

right of trial by jury inviolate, within the words and

fair intendment of the constitution . . . .”)). By

21

contrast, in actions arising under the FCC’s purview,

the private party has no path to a hearing at its own

election in front of a district court. See Section I,

supra. The government holds all the cards. Only if the

private party does not comply with the binding final

order and a different executive branch department

decides to seek to collect does the private party find

itself in front of a district court judge under Section

504. Therefore, the private party enjoys no right to

choose an Article III trial, much less a trial by jury of

its peers, unlike in Hof.

Third, the statutory scheme in Hof guaranteed

actual de novo review as to both law and facts. “In all

acts of congress regulating judicial proceedings, the

very word ‘appeal,’ unless restricted by the context,

indicates that the facts, as well as the law, involved

in the judgment below, may be reviewed in the

appellate court.” Hof, 174 U.S. at 37, 39, 45. Not so

here. Even if a private party finds itself before a

district court at the government’s option under

Section 504, that trial is a new, separate collection

suit, and district courts do not relitigate the facts and

law to determine whether a penalty should be levied

and if so, in what amount. See Section I, supra. And if

the private party pays the penalty in order to enable

an appeal to a circuit court, the order below is still

generally reviewed only for reasonableness; the

appellate court does not take new evidence and reach

new factual findings. Id.

Thus, unlike in Hof, the right of trial by jury—and

the right to an Article III trial—is “unreasonably

obstruct[ed]” by Section 503 at every turn. Hof, 174

U.S. at 45. “[I]t must for this reason be held to be

unconstitutional and void.” Id.

22

Meeker v. Lehigh Valley Railroad Co. The

FCC also relies on Meeker v. Lehigh Valley Railroad

Co., 236 U.S. 412 (1915), as proof that Section 503’s

usurpation of judicial authority is constitutional. This

case is even less helpful to the government than Hof,

if such a thing is possible.

First, like Hof and unlike Section 503 actions and

those at issue in Jarkesy, Meeker involved a suit for

“reparation” or actual damages, calculated as the

difference between the unreasonable higher rate

charged one coal shipper by the carrier and the

“reasonable” lower rate charged another shipper.

Meeker, 236 U.S. at 419–20, 429; compare Jarkesy at

124; 47 U.S.C. § 503. The reparations were to be paid

directly to the shipper who had paid the unreasonable

higher rate, not into some executive agency fund.

Meeker, 236 U.S. at 419–20. Therefore, the Court

ruled that “[h]ere the liability sought to be enforced

was not punitive, but strictly remedial, as is shown by

§§ 8, 9, 14, and 16 of the act to regulate commerce.”

Id. at 423. The Court explained that as a result, the

statute of limitations provision at issue, which

applied to “penalt[ies] or forfeiture[s],” did not apply

here, “to a liability imposed solely for the purpose of

redressing a private injury, even though the wrongful

act be a public offense, and punishable as such.” Id.

Second, the suit filed by the plaintiff in Meeker in

district court after the commission proceedings did

not simply seek to recover on an untouchable final

order. Rather, the plaintiff set out afresh “the causes

for which he claimed damages” in addition to

providing the commission’s report and order, and the

defendant denied the claims, raised statute of

limitations and jurisdictional defenses, and alleged

23

“there was before the Commission no substantial

evidence to sustain said findings and said order.” Id.

at 422. At trial, plaintiff submitted the Commission’s

report and orders as evidence, and the defendant, by

its own volition, produced no evidence. Id. But as

promised by the statute, the suit “proceed[ed] in all

respects like other civil suits for damages, except that

on the trial of such suit the findings and order of the

Commission shall be prima facie evidence of the facts

therein stated.” Id. at 426 (citing Section 16 of the act

at issue). As this Court explained, the statute simply

created a “rule of evidence” regarding the

Commission’s order, but a “prima facie” evidence rule

necessarily implies that the parties are expected to

submit additional evidence to facilitate de novo

factual findings by the district court. Id. at 430; see

also Lehigh Valley R. Co v. Meeker, 211 F. 785, 791

(3d Cir. 1913), rev’d on other grounds, 236 U.S. 412

(1915), and rev’d on other grounds, 236 U.S. 434

(1915) (citation omitted) (“The constitutional

guaranty relative to trial by jury in the courts of the

United States does not exclude legislative authority

to effect convenient changes in the rules of evidence,

involving no detriment to litigants.”). And defendants

further muddied the waters of their appeal by waiving

objections relating to the manner in which the report

was presented to the jury by failing to raise

contemporaneous objections. Meeker, 236 U.S. at 427.

Thus, the Court held, “The provision only establishes

a rebuttable presumption. It cuts off no defense,

interposes no obstacle to a full contestation of all the

issues, and takes no question of fact from either court

or jury. At most, therefore, it is merely a rule of

evidence.” Id. at 430. Unlike here, Meeker did not

consider whether the proceedings violated Article III,

24

since the proceedings did in fact provide a full Article

III trial on the underlying questions of liability and

damages.

Jarkesy should control. The parallels between

this case and Jarkesy are undeniable. As in Jarkesy,

“the remedy is all but dispositive.” Jarkesy, 603 U.S.

at 123. Both statutory schemes involve punitive

penalties pocketed by their respective agencies with

no required showing of harm to any party, not

remedial restitution. Moreover, while “the remedy is

the ‘more important” consideration,’ Jarkesy, 603 U.S.

at 123 (quoting Tull v. United States, 481 U.S. 412,

421 (1987)) (cleaned up), both statutory schemes

involve underlying causes of action that draw on

common law fraudulent practices as the trigger for a

penalty. 47 U.S.C. § 503(b)(1)(C)–(D) and (b)(2)(E)

(incorporating 47 U.S.C. § 509(a), 18 U.S.C. § 1343).

Just as the FCC controls the forum and path of

proceedings here, the SEC had sole control over its

enforcement forum, including the freedom to choose

to “adjudicate[] the matter in-house” without de novo

review and factfinding by an Article III court.

Jarkesy, 603 U.S. at 115, 117. Thus, just as in

Jarkesy, the statutory scheme here impermissibly

“withdraw[s a suit at common law] from judicial

cognizance.” Id. at 134 (quoting Murray’s Lessee, 59

U.S. at 284). This must end.

CONCLUSION

The judgment of the Fifth Circuit in FCC v. AT&T

should be affirmed. The judgment of the Second

Circuit in Verizon v. FCC should be reversed.

25

Respectfully submitted,

MICHAEL P. FARRIS

Counsel of Record

SARAH E. SIU

NATIONAL RELIGIOUS

BROADCASTERS

800 Maryland Avenue NE

Washington, D.C. 20002

571-359-6000

mfarris@nrb.org

ssiu@nrb.org

Counsel for Amicus Curiae

National Religious

Broadcasters

February 25, 2026