Supreme Court Schedules Argument in FCC CPNI Civil Forfeiture Cases
The U.S. Supreme Court will hear oral argument on April 21, 2026, in two consolidated cases that could significantly alter how and when the Federal Communications Commission (FCC)—and potentially other federal agencies—may impose monetary penalties. The Court's ruling will determine whether there are limits on administrative enforcement power and imposition of monetary penalties.
The U.S. Supreme Court granted certiorari and consolidated two cases challenging the FCC's authority to levy civil forfeiture penalties through administrative action under constitutional scrutiny: Verizon Commc'ns Inc. v. FCC, 156 F.4th 86 (2d Cir. 2025) and FCC v. AT&T, Inc., 149 F.4th 491 (5th Cir. 2025). The Supreme Court's decision is expected to resolve a circuit split between the Fifth Circuit, which struck down penalties levied on AT&T, and the Second and D.C. Circuits, which upheld penalties against two other carriers. Those decisions differed in their application of Supreme Court's decision in Securities & Exch. Comm'n v., 603 U.S. 109 (2024). Jarkesy held that the Seventh Amendment requires a jury trial when the Securities Exchange Commission seeks to impose civil penalties against a defendant for securities fraud.
Background: From Jarkesy to the FCC
In 2024, the FCC issued civil forfeiture orders against several carriers, including AT&T and Verizon, following an investigation into those carriers' sharing of customer proprietary network information (CPNI). Those orders include tens of millions of dollars in penalties. The carriers paid the penalties but then challenged the FCC's orders in multiple appellate courts, arguing that the FCC lacked authority to levy the penalties under Jarkesy. We discussed Jarkesy in more detail in a prior blog post.
Applying Jarkesy, the Fifth Circuit vacated the forfeiture order against AT&T, holding that the Commission's administrative penalty process violated AT&T's Seventh Amendment right to a jury trial and right to adjudication by an Article III court when the FCC imposed a $57 million forfeiture penalty. The Second and D.C. Circuits, however, upheld the FCC's authority to impose civil monetary penalties in parallel enforcement actions against two other carriers, rejecting arguments that such penalties violate the Seventh Amendment. The Second and D.C. Circuits emphasized that forfeitures imposed under § 503(b) of the Communications Act may be collected only through a trial de novo in federal court under § 504(a), thereby preserving the carrier's ability to refuse payment and obtain a jury trial if and when the government seeks judicial enforcement. The Fifth Circuit rejected this very argument, stating that a trial under § 504(a) was insufficient to provide AT&T its Seventh Amendment right because the carrier would not be permitted to challenge the FCC's legal conclusions in that trial.
Potential Implications on Administrative Enforcement Authority
The Supreme Court's grant of certiorari brings these issues to the forefront. The consolidated certiorari petitions ask the Court to decide whether the FCC may impose civil forfeitures through administrative proceedings, or whether such penalties must instead be adjudicated in federal court with the protections of a jury trial. Although the cases arise in the context of alleged violations of the FCC's CPNI rules, the questions presented extend well beyond privacy enforcement.
A ruling affirming the Fifth Circuit's holding in AT&T could sharply limit the FCC's ability to impose civil forfeitures directly, requiring the agency to refer such cases to the Department of Justice for prosecution in federal court. That shift could affect not only privacy and CPNI enforcement, but also the FCC's broader approach to enforcing compliance with the Communications Act.
More broadly, the Supreme Court's decision will likely impact other federal agencies, including the Securities and Exchange Commission, the Environmental Protection Agency, and others that use similar enforcement frameworks to impose civil forfeiture penalties. A ruling that tightens constitutional constraints on administrative adjudication could force agencies to reassess long-standing enforcement practices.
Looking Ahead
Briefing in the consolidated cases will proceed this spring, and following oral argument in April, a decision can be expected before the end of the Court's term in June. In the meantime, regulated entities should closely monitor developments and consider how a potential shift in enforcement authority might affect compliance strategies and litigation risk.
The Supreme Court's review underscores the high stakes of the ongoing debate over administrative enforcement power and should provide clarity on the constitutional boundaries of agency enforcement authority.
Soraya Mohamed, Adam Caldwell, and Michael T. Borgia all have extensive experience advising on matters at the intersection of communications, privacy, and cybersecurity enforcement. For more insights, contact Soraya, Adam, Mike or another member of Davis Wright Tremaine's Communications and Privacy & Security teams, or sign up for our alerts.