Thomas A. Berry, Brent Skorup, and Alexander Xenos
This morning the Supreme Court will hear arguments in consolidated cases challenging the Federal Communications Commission’s authority to impose massive civil penalties without a jury trial. After an administrative proceeding in front of an agency judge and without a jury, the FCC issued final forfeiture orders against AT&T and Verizon, finding them liable for alleged violations of federal data-protection rules and assessing penalties totaling more than $100 million. Although these cases are about the FCC, the stakes extend far beyond telecommunications policy. If the FCC wins, the ruling would allow agencies across the federal government to impose binding judgments first and offer a jury trial only later, if the government chooses to pursue collection. That reverses the constitutional order.
The Seventh Amendment protects the right to a civil jury trial in “suits at common law.” As the Supreme Court recently reaffirmed in SEC v. Jarkesy (2024), government actions seeking civil penalties are historically analogous to common-law actions in debt—cases that were tried before juries. The jury is not merely a procedural formality. It is a structural protection against arbitrary government power, ensuring that ordinary citizens stand between the state and the imposition of punishment, whether that punishment is criminal or civil in nature.
Yet under the Communications Act, the FCC investigates alleged violations, makes factual findings, determines liability, and imposes binding monetary penalties—all in-house, without a jury. These forfeiture orders are not advisory. They declare companies “liable,” create a debt to the US, and carry immediate consequences, including reputational harm and future regulatory exposure.
That is why Cato has filed an amicus brief supporting the carriers in the case, in which we argue that the FCC’s forfeiture scheme violates the Seventh Amendment right to a jury.
In response, the government argues that the statute offers a supposed escape hatch: A company can refuse to pay and wait for the Department of Justice to bring a collection action in federal court, where a jury trial would be available. But as we explain in our brief, that “choice” is illusory. To preserve even the possibility of a jury trial, a company must openly defy a final agency order, risk additional regulatory retaliation, and endure years of uncertainty. Unsurprisingly, it appears no company has ever taken that option. Companies instead pay and seek review in a court of appeals—where no jury is available and where factual review is deferential to the agency.
Our brief makes another, structural point. The government cannot have it both ways on the statute of limitations. To preserve penalties under the five-year limit in 28 U.S.C. § 2462, the government treats the FCC’s forfeiture proceeding as “enforcement.” But when faced with the Seventh Amendment, the government claims the same proceeding is merely “initial.” A process that is final enough to preserve penalty claims cannot simultaneously be too preliminary to trigger the right to a jury.
We urge the Court to adopt a straightforward rule: When an agency proceeding culminates in final agency action and is treated as enforcement sufficient to preserve civil penalties, it constitutes the adjudication of a legal claim for money. In such cases, the Seventh Amendment requires a jury before liability is conclusively determined. A later, optional enforcement suit cannot retroactively cure a Seventh Amendment violation. At the Founding, the jury’s role was antecedent, not remedial. Because the carriers’ liability was determined before they had access to a jury, the Supreme Court should rule that their Seventh Amendment rights were violated.
