In his final months as a FCC Commissioner, Nathan Simington emerged as a dissenting voice in a series of forfeitures handed out to unlicensed radio operators, to ESPN for its apparent misuse of emergency tones, and a September 2024 forfeiture order handed to TV station owner Sinclair Inc. for “KidVid” violations.
The key question for Simington: Do the Supreme Court’s recent decisions in Loper Bright and Jarkesy deliver the message that a federal agency’s financial penalty decision could not be the final one, leaving it to the judicial system to assess? Verizon and AT&T each think so, and took their respective FCC fights all the way to the Supreme Court for their consideration.
Last week, the nation’s highest court agreed to review the Commission’s forfeiture policies.
The decision from the U.S. Supreme Court to review Verizon v. FCC and FCC v. AT&T came on Friday (1/9), with a granting of petitions from the two wireless services companies. The cases have been consolidated, creating docket No. 25-406. Briefing and oral argument, the latter of which is allotted to one hour, will now be reflected in this new docket number.
AT&T’s petition was filed on October 6, 2025; Verizon submitted its petition on September 10 of last year.
While each company does not own radio or TV stations, the Supreme Court’s ruling will have a direct and significant impact on the entire broadcast media industry. The reason is simple: the Supreme Court is being asked to look at The Communications Act of 1934, which empowers the Federal Communications Commission 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.
At present, 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 is 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.
As a Commissioner, Simington made it very clear that it was the court’s job to answer this question. Given landmark decisions in Loper Bright and Jarkesy, each of which neutered a federal agency’s ability to assess and collect fines for rule violations, he said, “Under new and controlling Supreme Court precedent, the Commission’s authority to assess monetary forfeitures as it traditionally has done is unclear. Until the Commission formally determines the bounds of its enforcement authority under this new precedent, I am obligated to dissent from any decision purporting to impose a monetary forfeiture. I call on the Commission to open a Notice of Inquiry to determine the new constitutional contours of Commission enforcement authority.”
Simington now works at The Hudson Institute, serving as a visiting fellow at the its Center for the Economics of the Internet.
With the consolidated appeals, the Supreme Court will, interestingly, review AT&T’s win in the Fifth Circuit Court of Appeals concurrently to Verizon’s loss to the FCC in the Second Circuit federal appeals court. This will allow it to weigh why one court different from the other in issuing its ultimate ruling on the matter.
The FCC’s battle with AT&T involves 2020 violations of the Commission’s rules pertaining to lack of protection in the confidentiality of consumer data, specifically GPS tracking. The FCC assessed a forfeiture penalty of $57,265,625. The Fifth Circuit ruled the Commission did not have the authority to do so.
In the Second Circuit decision, Verizon uses the Jarkesy ruling to reinforce its belief that it should not be held to a $47 million forfeiture penalty “based on the alleged failure to safeguard customer data.” The key battle cry here? A right to a jury trial is enshrined in the Constitution, and that should prohibit a final say-so in the FCC’s forfeiture order capabilities in place for more than 90 years.
However the Supreme Court decides will impact everything from NAL forfeitures linked to online public file violations to the brazen antics of pirate radio operators littered across South Florida, Boston and the New York Tri-State Area. As such, all eyes will be focused on this case as 2026 rolls on — with attorneys and operators alike eagerly awaiting a decision perhaps bigger than any for broadcasters in the modern era.
