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Last term, in Axon Enterprise v. FTC and SEC v. Cochran, the Supreme Court held that regulated parties who are the subject of agency enforcement actions can challenge those actions on certain constitutional grounds in federal court without having to wait for the agency proceedings to run their course. And this term, in SEC v. Jarkesy, the Supreme Court is considering the constitutionality of several features of the SEC’s current enforcement scheme. Specifically, in Jarkesy, the Court is considering whether the Seventh Amendment requires certain SEC enforcement actions to be brought in federal court rather than before an agency tribunal, whether the removal protections for the SEC’s in-house administrative law judges violate Article II of the Constitution, and whether Congress violated the nondelegation doctrine by giving the SEC discretion under federal securities laws to choose either an in-house tribunal or federal court for its enforcement proceedings. 

Taken together, Axon Enterprise/Cochran and the forthcoming decision in Jarkesy heighten the probability that federal agencies will face collateral litigation during investigations and enforcement proceedings. And given several features of its current enforcement practices, the Federal Communications Commission (FCC) may be especially vulnerable to such collateral litigation. 

In his newly published White Paper on FCC Enforcement Bureau Reform, Tom Johnson—current co-chair of the Issues and Appeals Practice at Wiley Rein LLP and former General Counsel at the FCC—examines the FCC’s current enforcement practices, identifies areas where those enforcement practices are potentially vulnerable to constitutional challenges, and proposes several concrete reforms that could reduce the FCC’s vulnerability to those challenges. As the White Paper puts it, such reforms would help ensure that the FCC’s “enforcement regime can continue to operate effectively while also safeguarding the constitutional rights of parties subject to” the FCC’s authority. 

 The White Paper is available here.