Cybersecurity Policy Report, FCC Loses Bid for En Banc Rehearing in AT&T Location Data-Sharing Case, (Aug 25, 2025)
Organizations Mentioned:AT&T | Sprint Nextel Corp. | T-Mobile US | Verizon Communications
By Paul Kirby
The U.S. Court of Appeals for the Fifth Circuit (New Orleans) has denied a petition filed by the FCC asking the judges to rehear en banc AT&T, Inc.’s challenge of the agency’s 2024 forfeiture order fining the company more than $57 million for violating the customer proprietary network information (CPNI) protections in section 222 of the Communications Act.
“Because no member of the panel or judge in regular active service requested that the court be polled on rehearing en banc (Fed. R. App. P. 35 and 5th Cir. R. 35), the petition for rehearing en banc is DENIED,” the court said Friday in AT&T, Inc., v. Federal Communications Commission and United States of America, No. 24-60223 (5th Cir. Aug. 22, 2025) (CPR, July 22).
In the opinion released in April, a three-judge panel vacated the FCC’s forfeiture order (CPR, April 18). There is a circuit split on the issue, making it more likely the Supreme Court will consider the cases. A third CPNI appeal is pending in the Second Circuit (New York), where Verizon Communications, Inc., is challenging a nearly $47 million fine.
Earlier this month, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit affirmed fines of $80 million and more than $12 million against T-Mobile US, Inc., and Sprint Corp., respectively.
In announcing the denial of the en banc rehearing petition in the AT&T case, the Fifth Circuit released an updated version of the judicial panel opinion that removed a portion of its holding “as unnecessary” because the case cited “has possibly been called into question by a Supreme Court decision issued after our panel opinion … .”
In McLaughlin Chiropractic Associates, Inc., v. McKesson Corp., et al., No. 23-1226 (U.S. June 20, 2025), a June opinion stemming from a private dispute over unsolicited faxes under the Telephone Consumer Protection Act (TCPA), the Supreme Court held that it saw “no good rationale” for finding that the Hobbs Act, which gives federal appeals courts exclusive jurisdiction over pre-enforcement challenges of final agency orders, requires a district court to “afford absolute deference” to an agency’s interpretation of a statute.
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