"The Fifth Circuit concluded that the FCC's enforcement proceeding leading to a monetary forfeiture order violated AT&T's Seventh Amendment rights. This Court shouldn't follow that decision," the FCC told the 2nd Circuit last week.

FCC loss has wide implications

Carr's FCC argued that the agency's "monetary forfeiture order proceedings pose no Seventh Amendment problem because Section 504(a) [of the Communications Act] affords carriers the opportunity to demand a de novo jury trial in federal district court before the government can recover any penalty. Verizon elected to forgo that opportunity and instead sought direct appellate review." The FCC put forth the same argument in the T-Mobile case with a filing in the District of Columbia Circuit.

There would be a circuit split if either the 2nd Circuit or DC Circuit appeals court rules in the FCC's favor, increasing the chances that the Supreme Court will take up the case and rule directly on the FCC's enforcement authority.

Beyond punishing telecom carriers for privacy violations, an FCC loss could prevent the commission from fining robocallers. When Carr's FCC proposed a $4.5 million fine for an allegedly illegal robocall scheme in February, Simington repeated his objection to the FCC issuing fines of any type.

"While the conduct described in this NAL [Notice of Apparent Liability for Forfeiture] is particularly egregious and certainly worth enforcement action, I continue to believe that the Supreme Court's decision in Jarkesy prevents me from voting, at this time, to approve this or any item purporting to impose a fine," Simington said at the time.

5th Circuit reasoning

The 5th Circuit ruling against the FCC was issued by a panel of three judges appointed by Republican presidents. "Our analysis is governed by SEC v. Jarkesy. In that case, the Supreme Court ruled that the Seventh Amendment prohibited the SEC from requiring respondents to defend themselves before an agency, rather than a jury, against civil penalties for alleged securities fraud," the appeals court said.