Today, TechFreedom filed an amicus brief urging the U.S. Supreme Court to strike down a statutory scheme that enables the Federal Communications Commission to impose civil penalties without affording the defendant a jury trial.

Under the Communications Act, the FCC may impose large monetary penalties on a telecom carrier in an in-house administrative proceeding. The carrier then faces a choice: forgo a jury trial, pay the penalty, and seek cursory appellate review, or await a jury trial that may or may not occur, depending on whether the Justice Department files a collection action, in district court, at some point over the next five years. TechFreedom’s brief argues that this scheme violates the Constitution’s speedy-trial principle.

“Our legal tradition’s hostility to governmental delay runs deep,” said Corbin K. Barthold, Director of Appellate Litigation at TechFreedom. “From Magna Carta’s promise that the Crown would not ‘delay right or justice,’ through Coke’s and Blackstone’s exposition of the common law, through the Speedy Trial Clause’s requirement of swift criminal prosecutions and the Due Process Clause’s requirement that hearings occur at a meaningful time, the principle is the same: the state may not level charges and then sit on its hands.”

“Unreasonable delay calls the credibility of the justice system itself into question,” Barthold continued. “A government empowered to level serious charges in a penalty order, and then leave those charges hanging for five years, is a government empowered to manipulate for advantage. It can extract concessions from regulated entities without ever putting its claims to the test—and thus without having to show that it is not acting for arbitrary or political reasons. Delay becomes enforcement. Worse still, enforcement becomes extortion. In such a system, little separates accusation from punishment.” 

“The FCC’s ploy to charge now but adjudicate (maybe) later must be rejected,” Barthold concluded. “The FCC’s civil penalty regime lets the government level charges, then wait, then leverage the waiting. That is not how our system is supposed to work. The Court should not allow the FCC to govern by accusation—which is to say, not to govern by law at all.”

The consolidated cases are FCC v. AT&T, Inc., No. 25-406 (U.S.), and Verizon Communications Inc. v. FCC, No. 25-567 (U.S.). 

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Find this brief on our website, and share it on Twitter and Bluesky. We can be reached for comment at media@techfreedom.org. Read our related work, including:

About TechFreedom: TechFreedom is a nonprofit, nonpartisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.

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