Cybersecurity Policy Report, Justices Wrestle With Arguments in FCC Privacy Cases, (Apr 21, 2026)

By Paul Kirby

Supreme Court justices today wrestled with arguments in consolidated cases involving more than $100 million in two FCC forfeiture orders that the Commission and Department of Justice contend don’t impose a payment obligation.

The cases in FCC et al. v. AT&T, Inc., (docketed, Oct. 6, 2025), No. 25-406 and Verizon Communications, Inc. v. FCC et al., (docketed, Nov. 12, 2025), No. 25-567 arise from forfeiture orders issued by the Commission for violating CPNI (customer proprietary network information) protections (CPR, April 29, 2024).

The U.S. Court of Appeals for the Fifth Circuit (New Orleans) had vacated a more than $57 million forfeiture order against AT&T (CPR, April 18, 2025), while the Second Circuit (New York) had upheld a nearly $47 million forfeiture order against Verizon (CPR, Sept. 11, 2025).

The D.C. Circuit ruled against T-Mobile US, Inc., and Sprint Corp. in a challenge to forfeiture orders of $80 million and more than $12 million against T-Mobile and Sprint, respectively. T-Mobile and Sprint are not part of the cases argued today.

During the nearly 90-minute oral argument, Jeffrey Wall, an attorney for AT&T and Verizon, criticized the government’s suggestion that the forfeiture orders were not binding and were instead “just invitations to pay.” For decades, he said, reputable entities have paid any such forfeitures, noting that the documents ordered payment and stated that the carriers were liable for the forfeitures.

He also said the government used the same binding language as was used in SEC v.Jarkesy. The fact that the carriers weren’t ensured that they could have a jury trial was a violation of the Seventh Amendment, he said.

Chief Justice John Roberts Jr. asked if carriers were concerned only about “a PR problem” since they didn’t have to pay anything unless a jury found them liable.

Mr. Wall said the carriers would have had to wait to see if the government took them to court to recover the funds, adding that in the meantime they would have been labeled law breakers and the situation would have hung “over our heads.”

Justice Neil Gorsuch asked whether a court would have jurisdiction over the cases if the forfeiture orders were not considered final orders. Mr. Wall said a court’s jurisdiction was unclear.

Justice Brett Kavanaugh told Mr. Wall that “it seems like you’ve won on the law going forward, one way or the other.” He noted that Mr. Wall’s reply brief began, “‘The government is in retreat.’ That’s absolutely correct, I agree with you.”

He expressed concern about Mr. Wall’s complaint that the government misled the petitioners due to the language of the forfeiture orders. Mr. Wall said the court should state that the government exceeded its authority and order refunds to the carriers. He added that the court should also make it clear that “the orders are toothless.”

In response to Mr. Wall and to various questions from justices, Assistant to the Solicitor General Vivek Suri said the carriers could initiate a jury proceeding with a declaratory action. He also said the fact that it would take the government time to file a suit that could lead to a jury proceeding de novo was not a violation of the Seventh Amendment.

Justice Kavanaugh told Mr. Suri that he was concerned that the petitioners paid the fines and then were told they didn’t have to. “I think that’s a problem for you,” he said. “This does not seem regular order to me at all.”

Mr. Suri cited language to show that AT&T was not misled because the order clearly said it was entitled to a jury trial before it had to pay the fine.

He suggested that the court could leave for remand whether AT&T was misled, saying that if it was, the government would change the language of forfeiture orders going forward.

“One thing we talked about a little bit with your friend on the other side but not you yet is the government's retreat on how it's interpreting this statute. It does talk about assessing and imposing liability, and that, you know … one might normally think that that really does have a legal consequence attached to it,” Justice Kavanaugh told Mr. Suri.

“Now you're running as far and as fast from that idea as you possibly can, and—and I would too,” added Justice Gorsuch.

Mr. Suri stressed that “imposed” was used by Congress in statutes.

Justices also pressed Mr. Suri about Mr. Wall’s “collateral” concerns about parties being disadvantaged if they didn’t pay the fines and instead waited for a jury trial.

“It has no preclusive effect,” Mr. Suri said. “We do not believe the FCC can use the orders themselves or the failure to pay until a court orders payment against a party.” The only legal consequence of forfeiture orders is clearing the way for DoJ to bring a case, he added.

Justice Clarence Thomas noted that the forfeiture orders did not include a “disclaimer” saying they were nonbinding, adding that instead they say “ORDERED.”

Mr. Suri said that “it might be a good idea” to change the wording in the orders, adding that if that had been done earlier, the existing litigation might have been avoided.

“At a minimum, these orders shouldn’t be worth anything more than the paper they’re printed on, and we ought to get our money back,” Mr. Wall said.

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