WASHINGTON—As the Supreme Court considers a case that could have major implications for the Federal Communications Commission’s ability to impose fines, two former Federal Communications Commission (FCC) Chairs and six non-profit consumer advocacy groups have submitted a friend-of-the-court brief defending the agency.
The filing was made in consolidated cases before the U.S. Supreme Court regarding the FCC’s ability to hold wireless carriers accountable for data breaches and other violations of consumer privacy rights.
The cases center around financial penalties issued to four major wireless carriers in 2020 for apparently selling access to their customers’ location information without taking reasonable measures to protect against unauthorized access to that information.
Article continues belowThe FCC’s investigation uncovered that sensitive location information for tens of millions of the carriers’ customers was made vulnerable. After an investigative process, during which the carriers were given notice and the opportunity to respond, the FCC assessed massive penalties totaling nearly $200 million.
Those fines were imposed on Verizon ($47 million), AT&T ($57 million), T-Mobile ($80 million) and other wireless carriers for failing to protect their customers’ location data.
In response, both Verizon and AT&T filed federal cases that have been consolidated into a case that the Supreme Court agreed to consider in January of 2026.
These appeals are important in the context of a longstanding effort by the Supreme Court to chip away at the authority of regulatory agencies. In a 2024 ruling SCOTUS rejected the doctrine of “Chevron deference,” under which courts were to defer to a regulatory agency’s expertise in interpreting federal laws where Congress’ intent was unclear.
In a second 2024 ruling in Securities & Exchange Commission v. Jarkesy, the Court ruled 6-3 that the securities regulator must bring fraud cases seeking civil penalties to federal court instead of relying on its internal tribunals.
Based on the SEC case, both Verizon and AT&T appealed the fines, arguing the FCC was denying the defendants their right to a jury trial by issuing these fines.
The 2nd U.S. Circuit Court of Appeals in New York denied that argument in the Verizon case and upheld the fine but the 5th U.S. Circuit Court of Appeals in New Orleans overturned the fines against AT&T.
Following that, Verizon appealed the 2nd Circuit ruling to SCOTUS and the FCC appealed the AT&T case. The High Court’s decision to hear the cases together will resolve the conflict between the Circuit Court judgments.
The brief was submitted in FCC v. Verizon and AT&T v. FCC by Democracy Forward on behalf of two former FCC Chairs, Reed Hundt and Tom Wheeler, as well as the Benton Institute for Broadband & Society, Consumer Reports, the Electronic Information Privacy Center (EPIC), the National Consumer Law Center, the National Consumers League, and Public Knowledge. It stresses both the importance of SCOTUS upholding the fines and the FCC’s ability to levy them.
The Brief noted that the FCC ruling did not deny the wireless carriers a jury trial. Instead of waiting for the FCC to enforce the penalties in a de novo district court trial where a jury would have been available, both Verizon and AT&T sought review in courts of appeals.
“Given the availability of the very thing the carriers complain is missing here—a jury trial—the carriers’ challenge has lost its signal,” the brief notes. “Most notably, the carriers do not deny their wrongdoing here.”
“Consumers do not sign away their privacy when they sign up for wireless service, which is a crucial lifeline in modern society,” added Tom Wheeler, former FCC Chair in a statement announcing the filing of the Brief. “The FCC acted appropriately when they issued these penalties. I am proud to join this brief, and urge the Court to respect the privacy protections Congress put in place.”
“As our personal data has become more insecure than ever, it is critical that we have strong regulators who are equipped to protect us from privacy violations,” added NCL Vice President of Public Policy, Telecommunications, and Fraud John Breyault in a statement. “Congress made it clear that the FCC’s job is to make sure that consumers’ sensitive telecommunications data is protected. The FCC, across bipartisan administrations, faithfully applied these mandates. The Court should ensure that the Commission continues to have every lever at its disposal to ensure America’s telecom carriers follow the law and to hold them accountable when they fail.”
“The carriers’ constitutional argument, if accepted, would strip the FCC of its core enforcement authority and leave consumers without a meaningful remedy when carriers misuse their most sensitive data or otherwise break the law,” added John Bergmayer, Legal Director of Public Knowledge in a statement. “But as our brief explains, the carriers had the opportunity to contest the FCC’s findings before a jury and walked away from it, choosing instead to attack the foundations of FCC enforcement itself. Their challenge should fail.”
The Brief notes that the Telecommunications Act of 1996 requires telecommunications carriers to protect the confidentiality of certain customer data related to the provision of telecommunications service, including location information. The FCC’s rules make clear that carriers must take reasonable measures to discover and protect against attempts to gain unauthorized access to this data. The rules also require that carriers or those acting on their behalf generally must obtain consent from a customer before using, disclosing, or allowing access to this data, and further make clear that carriers are liable for the actions of those acting on their behalf.
“A functional democracy relies on holding corporations accountable when they harm or abuse the people they are supposed to serve: their customers,” said Skye Perryman, President and CEO of Democracy Forward. “These telecom giants are trying to avoid penalties, jeopardizing the ability of the FCC to protect consumers’ private data and hold wrongdoers accountable.”
The friend-of-the-court brief can be found here.
