Fifth Circuit: FCC Can’t Assess Monetary Damages Against AT&T Without Jury Trial

Last week, the Fifth Circuit ruled that the Federal Communications Commission’s attempt to hold AT&T accountable for exposing Americans’ sensitive location information—one of the biggest scandals in recent telecom memory—should be vacated because the FCC did not hold a jury trial prior to assessing monetary damages.

Relying on the Supreme Court’s decision in SEC v. Jarkesy, the Fifth Circuit found that AT&T’s alleged violations were sufficiently analogous to common law negligence such that the jury trial requirement introduced in Jarkesy applied to the FCC’s long-delayed enforcement action against the company. Verizon and T-Mobile/Sprint have challenged similar enforcement actions, in the Second Circuit and the D.C. Circuit, respectively, potentially setting up a circuit split.

The Fifth Circuit did not address industry arguments that the location data at issue is unprotected by the Communications Act or the FCC’s Customer Proprietary Network Information (CPNI) Rules. EPIC filed an amicus brief on this very point in both the Second and D.C. Circuits.

EPIC regularly advocates for policies that strengthen data security for consumer information, protecting data from unauthorized access and other misuse.