The FCC imposes large fines through an internal administrative process where it acts as judge, jury, and executioner. If companies want to challenge the fine before a jury, the only option they have is to refuse to pay and wait for the Department of Justice to come after them. AT&T and Verizon both challenged this as violating the Constitution’s guarantee of a right to trial by jury, and the Supreme Court agreed to hear the case. The Supreme Court recently ruled in SEC v. Jarkesy (where MI filed a brief) that the Seventh Amendment guarantees a jury trial when the SEC imposes civil fines for securities fraud. The question now is whether that logic also applies to the administrative fines imposed by the FCC.
The Manhattan Institute, joined by the Rutherford Institute, has filed a brief supporting the companies’ right to a jury trial. The government’s argument that the companies can wait for the DOJ to come after them is clearly not sufficient to protect the right to trial by jury. Companies can incur penalties and other damages while waiting for the DOJ to come, which isn’t even guaranteed to happen. Moreover, we argue that other agencies could follow this process used by the FCC and undercut Jarkesy entirely. The Court should continue to protect the crucial right to a trial by jury, even for fines imposed by administrative agencies.
Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.
James R. Copland is a senior fellow at the Manhattan Institute and director of Legal Policy.
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