WASHINGTON, D.C. — Supreme Court justices expressed skepticism during oral arguments of AT&T and Verizon's claim that the Federal Communications Commission's procedure for imposing fines violated their Seventh Amendment right to a jury trial. The carriers were fined a total of $104 million for selling users' real-time location data without consent.

During the arguments, justices pointed out that carriers could obtain a jury trial by refusing to pay fines and waiting for the government to initiate an enforcement action in court. FCC fine decisions are nonbinding and require a court decision to enforce them, and the agency relies on the Justice Department for collections because it lacks the power to enforce forfeiture orders on its own.

"It seems like you've won on the law going forward, one way or the other. Your reply brief begins, 'the government's in retreat.' That's absolutely correct," Justice Brett Kavanaugh said. Kavanaugh also said that carriers were misled into paying fines without realizing they could wait for charges and obtain a de novo jury trial.

Jeffrey Wall, an attorney representing the carriers, argued that calling forfeiture orders nonbinding in court filings amounted to a concession that the FCC's scheme violates the Seventh Amendment. "It had occurred to no one for decades that these orders are not binding. It's not what their regulation says. It's not what their guidance says, and it's not a natural reading of the statute," Wall said. He added: "My clients need to get their money back because whatever the scheme is the government's defending now, it doesn't bear any resemblance to the scheme everybody understood in the lower courts."

The Trump administration is defending forfeiture orders issued during the Biden administration. Vivek Suri, Assistant to the Solicitor General, told the court the FCC did not mislead carriers and said the agency may change the language of its forfeiture orders to make it clearer that fines do not have to be paid until after a jury trial.

"We think this operates much like an indictment. It authorizes a lawsuit to go forward. It does not itself impose a final penalty," Suri said. He said the FCC has taken the position that its orders are nonbinding since the 1970s, adding: "The FCC originally took the position that the only way to challenge an FCC forfeiture order is to decline to pay and wait for the agency to bring an enforcement action, and that's what most people thought the scheme worked like from 1978 to 2003."

AT&T previously convinced the US Court of Appeals for the 5th Circuit to overturn its fine, while Verizon lost its case in the 2nd Circuit, which said refusing to pay and waiting for enforcement satisfies the right to a jury trial. T-Mobile lost a similar ruling in the District of Columbia Circuit, though Supreme Court proceedings cover the AT&T and Verizon cases only. The carriers paid their fines and then challenged them in circuit appeals courts, where judges' panels ruled on the cases.

A government brief said, "If the FCC cannot pursue forfeitures against carriers, and no other agency can perform that role, rules concerning matters ranging from privacy to national security might go effectively unenforced."