But in a majority opinion written by Chief Justice John Roberts, the court accepted the FCC argument that carriers could have obtained jury trials if they refused to pay the fines and the government tried to collect. Carriers could either pay the fines and challenge them in circuit appeals courts, or not pay the fines and wait for the government to collect in a process that ultimately would result in a jury trial for each carrier.
“The FCC’s forfeiture proceedings fit comfortably within” the Supreme Court’s Seventh Amendment precedents, Roberts wrote. “The orders at issue did not settle the carriers’ legal obligations because, stated simply, they did not create an obligation to pay. And the orders did not reflect the ultimate determination of any fact because, before the carriers could have been made to pay, the Government was required to prove its case to a jury.”
During oral arguments, justices expressed skepticism of AT&T and Verizon’s claims and seemed to agree that FCC fine decisions are nonbinding until enforced by a court. Justice Brett Kavanaugh described the case as a victory for carriers either way, because the government acknowledged its orders are nonbinding without a jury trial. //
“The Commission now agrees that AT&T and Verizon would have been entitled to a jury trial de novo in an Article III court had they declined to pay,” Thomas wrote. The majority, Thomas said, “accepts the Government’s newfound account that under the Act, the Commission’s self-styled ‘orders’ were mere nonbinding notices that the regulated parties were free to ignore.”
Thomas supports this interpretation and said it “should govern future proceedings so as to bring the Commission’s enforcement practices into harmony with the Constitution.” But as for the case involving AT&T and Verizon, Thomas argued that the FCC did not comply with the limits described in today’s Supreme Court ruling.
“If AT&T and Verizon did not pay, they arguably were subject to immediate statutory penalties for defying Commission forfeiture orders,” Thomas wrote. “The procedure for judicial review of the orders that is the basis for this Court’s jurisdiction treated them not as requests for voluntary payment, but as ‘final orders.’”
Thomas wrote that “AT&T and Verizon did what courts ordinarily encourage: They paid under protest and filed suit to get their payments back. Today, the Court punishes AT&T and Verizon for complying with a government order that they in good faith believed was obligatory, diligently preserving their objection to that order, and then litigating that objection so effectively as to cause the Government to change its position years later.”
