Americans for Prosperity recently published a report explaining why each summer Congress should legislatively respond to Supreme Court decisions interpreting federal statutes.
The report makes a simple point: when the Supreme Court interprets a statute, its job is to say what the law is—not what it should be. If Congress disagrees with the result and wants the statute to mean something else, the Constitution provides it with the tool to do so: amend the statute. Yet this legislative response remains chronically underused.
Congress should amend 47 U.S.C. § 503(b) to clarify that FCC notice of apparent liability do not create a legal obligation to pay and that defendants are entitled to de novo review in federal court before any demand to pay has legal effect.
Background
47 U.S.C. § 503(b) authorizes the Federal Communications Commission to seek monetary forfeitures for violations of the communications laws through an administrative process. Under § 503(b)(4), the FCC may impose penalties by issuing a notice of apparent liability and entering an order assessing a penalty. A recipient of such an order may either challenge it under the Hobbs Act or take no action. Until FCC v. AT&T, 608 U.S. ___ (2026), regulated parties and the FCC believed these orders were binding, and appellate courts held that payment was a precondition to suing under the Hobbs Act. Section 503(b)(3) also gives the FCC the option of bringing an in-house enforcement action. In practice, the FCC does not use this administrative process.
Supreme Court Ruling
The question before the Court in FCC v. AT&T was whether the statute complied with the Seventh Amendment. The Court held that it was, construing § 503(b)(4) to have no legal effect, establish facts, or create an obligation to pay. Thus, the FCC does not have the authority to collect a penalty based on a forfeiture order. If the FCC wishes to collect, it must refer the matter to DOJ under § 504, which then brings a lawsuit in federal court, subject to “a de novo trial,” and must prove its case to a jury. For that reason, § 503(b)(4) did not violate the Seventh Amendment’s jury-trial guarantee under Jarkesy v. SEC.
AFP-Supported Congressional Response
Congress should amend 47 U.S.C. § 503(b) to incorporate the Court’s holding to clarify that the FCC may not demand payment unless a defendant has had the opportunity for a jury trial, with all matters of law reviewed de novo. Congress may consider adding a prohibition on referencing FCC proceedings at trial to avoid prejudicing the jury and a requirement that FCC communications with targets do not suggest the target is bound by the demand for payment. Congress should also give respondents a right to remove any FCC administrative proceedings to federal court.
Cindy Crawford is Senior Policy Counsel at Americans for Prosperity Foundation.
