Cybersecurity Policy Report, Supreme Court Review Sought of Fifth Circuit Data Breach Ruling, (Oct 10, 2025)

By Paul Kirby

The FCC has asked the Supreme Court to review a ruling by a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit (New Orleans) that vacated a 2024 forfeiture order fining AT&T, Inc., more than $57 million for violating customer proprietary network information (CPNI) protections (CPR, April 18).

In the unanimous decision, the judges cited last year’s Supreme Court decision in Securities and Exchange Commission v. Jarkesy, which held that an SEC in-house enforcement action deprived parties of their Seventh Amendment right to a jury trial and that the SEC case “did not fall within the ‘public rights’ exception, which would let Congress assign certain matters to an agency instead of an Article III court.”

In August, the Fifth Circuit denied a petition by the FCC asking the judges to rehear en banc AT&T’s challenge (CPR, Aug. 25).

Last month, T-Mobile US, Inc., and Sprint Corp. asked the D.C. Circuit for a panel rehearing and rehearing en banc of the carriers’ challenge of FCC fines of $80 million and more than $12 million against T-Mobile and Sprint, respectively, for providing to third parties access to CPNI without their consent. In August, a three-judge panel of the D.C. Circuit affirmed the FCC’s fines.

Last month, a three-judge panel of the Second Circuit (New York) also affirmed a fine of nearly $47 million against Verizon Communications, Inc., (CPR, Sept. 11)

The circuit split makes it more likely the Supreme Court will grant the FCC’s petition.

In a petition for a writ of certiorari, AT&T, Inc., v. Federal Communications Commission and United States of America, No. 24-60223 (5th Cir. April 17, 2025) petition for cert. FCC et al. v. AT&T, No. 25-406 (U.S. Oct. 3, 2025), the FCC and the Department of Justice said the 1934 Communications Act, as amended, empowered the FCC “to assess monetary forfeiture penalties for certain violations of the Act or the FCC’s regulations by issuing a notice of apparent liability, giving the regulated party an opportunity to respond in writing, and then issuing a final decision. If the regulated party declines to pay and the government sues to collect the penalties, the regulated party is entitled to a de novo jury trial in a federal district court. Alternatively, the subject of an FCC forfeiture order may pay the monetary penalty and file a petition for review in a court of appeals, thereby triggering a judicial-review proceeding in which no jury is available. The question presented is as follows: Whether the Communications Act provisions that govern the FCC’s assessment and enforcement of monetary forfeitures are consistent with the Seventh Amendment and Article III.”

The petition said, “The Seventh Amendment preserves the right to trial by jury in ‘Suits at common law’ where the amount in controversy exceeds $20. When suits at common law are resolved by federal adjudicators, Article III ordinarily requires that the suits be tried by courts rather than executive agencies. See SEC v. Jarkesy, 603 U.S. 109, 136 (2024). The government does not seek review of the Fifth Circuit’s holdings that (a) a case in which the FCC seeks a forfeiture penalty to enforce Section 222 of the Act is a suit at common law and (b) such a suit falls outside the public-rights exception to the Seventh Amendment and Article III. But contrary to the decision below, the statutory review scheme here satisfies the Seventh Amendment and Article III because Section 504(a) entitled respondent to a de novo jury trial in district court before the monetary penalty could be collected.”

“The Fifth Circuit’s decision warrants this Court’s review because it holds an Act of Congress unconstitutional, conflicts with this Court’s precedents and with recent decisions of two other circuits, and, if left in place, would significantly impede the FCC’s enforcement of the Communications Act,” the petition added.

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