Matt Schettenhelm

I missed this @yalejreg post last month, but to be called "an indispensable resource on all things FCC" by @Aaron_L_Nielson is quite an honor. yalejreg.com/nc/d-c-circuit…

Today’s DC Cir oral argument in @AnthropicAI v. @DeptofWar went better for Anthropic than I expected, thought that might not mean victory. The panel was Judges Karen LeCraft Henderson (Reagan/George HW Bush); Greg Katsas (Trump); Neomi Rao (Trump). 1/11

Musk starts as a significant underdog in any appeal to the Ninth Circuit in his OpenAI loss, in my view. I'd expect an appeal to focus in significant part on the judge's refusal to give this jury instruction on "continuous accrual."

Judge Karen Henderson coming out strongly against the Department of War in Anthropic case: "This is a spectacular overreach" by the Dept. of War. But Judges Katsas and Rao seem much more deferential, concerned about court jurisdiction.

Musk v. Altman is over, but do not fear, there's more AI litigation happening today! A federal appeals court in Washington, D.C., is set to hear arguments in Anthropic’s lawsuit over its blacklisting by the Pentagon. cnbc.com/2026/05/19/ant…

I had lunch with Brendan Carr ft.com/content/d62d33…

You don't see Paul Clement signing many FCC petitions.

Especially interesting thoughts about the value of observing cases in the courtroom, in era of live internet audio.

It took the Eighth Circuit 588 days to rule on the challenge to the FCC's digital discrimination rules. No dissents. ecf.ca8.uscourts.gov/opndir/26/05/2…

Sara Fischer joined @andersoncooper to discuss the FCC ordering a review of ABC's broadcast licenses. 📺: @AC360 | @sarafischer | @axios

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Chief Justice John Roberts notifies everyone in the Supreme Court oral argument of a flyover: "I don't know why they didn't check with me."

It was an absolute pleasure for @NYCStein and I to bring back our first three-time guest @HenriettaVeda, co-founder and director of economic policy at Veda Partners, to @BBGIntelligence Votes & Verdicts podcast. We discussed what role Congress will play in the future of the Iranian conflict, the outlook for the US midterms, and something that's not getting a ton of press, what will President Trump focus on in 2027-2028? (hint: the word rhymes with sheriff but starts with a "T"). Apple: podcasts.apple.com/us/podcast/tre… Spotify: open.spotify.com/episode/04ioKT…

@MatthewKeysLive Yes, thanks. Still no separate emergency request for a stay of the PI decision during this appeal. Briefing on a request like that would've played out in days/weeks, not months.

@mattschett x.com/MatthewKeysLiv…

Nexstar appealed, but if it's going to add an emergency plea to halt Friday's preliminary injunction, the company is sure taking its time in asking. Maybe still a small window to do so, but it's closing fast. Meanwhile, lawsuit/stay plea challenging FCC still just sits. $NXST

@nickVrusso Hard to say for sure. Possible they’re taking a wait-and-see approach with an eye on antitrust case. Also possible that (likely) conservative-leaning panel writing up a decision to deny relief now.

@mattschett Any idea why it’s taking so long with the D.C. court hearing the FCC ownership waiver challenge?

Dad gets emotional in the stands after finally seeing his son make it to the big leagues

This is my take too. No matter the technical legal outcome, AT&T and Verizon will almost certainly "win" by cementing what the government conceded about the extremely limited effects of FCC forfeiture orders.

Post-argument: seems like a clear win for regulated parties. Justice Kavanaugh summed it up to AT&T's counsel: "It seems like you've won on the law going forward one way or the other. Your reply brief begins: 'The government's in retreat.' That's absolutely correct."

It would be fascinating if the Supreme Court held that a civil penalty imposed by a federal agency basically means nothing (and is not enforceable) unless the agency brings a collection action in federal court.

This morning the Supreme Court will hear arguments in consolidated cases challenging the @FCC's authority to impose massive civil penalties without a jury trial. After an administrative proceeding in front of an agency judge and without a jury, FCC issued final forfeiture orders against @ATT and @Verizon, finding them liable for alleged violations of federal data-protection rules and assessing penalties totaling more than $100 million combined. Although these cases are about the FCC, the stakes extend far beyond telecommunications policy. If the FCC wins, it would allow agencies across the federal government to impose binding judgments first and offer a jury trial only later, if the government chooses to pursue collection. That reverses the constitutional order. The Seventh Amendment protects the right to a civil jury trial in “suits at common law.” As the Supreme Court recently reaffirmed in SEC v. Jarkesy, government actions seeking civil penalties are historically analogous to common-law actions in debt—cases that were tried before juries. The jury is not merely a procedural formality. It is a structural protection against arbitrary government power, ensuring that ordinary citizens stand between the state and the imposition of punishment, whether that punishment is criminal or civil in nature. Yet under the Communications Act, the FCC investigates alleged violations, makes factual findings, determines liability, and imposes binding monetary penalties all in-house, without a jury. These forfeiture orders are not advisory. They declare companies “liable,” create a debt to the United States, and carry immediate consequences, including reputational harm and future regulatory exposure. That is why @CatoInstitute has filed an amicus brief supporting the carriers in the case, co-authored by @bskorup and @AMXenos, in which we argue that the FCC’s forfeiture scheme violates the Seventh Amendment right to a jury. In response, the government argues that the statute offers a supposed escape hatch: a company can refuse to pay and wait for the Department of Justice to bring a collection action in federal court, where a jury trial would be available. But as we explain in our brief, that “choice” is illusory. To preserve even the possibility of a jury trial, a company must openly defy a final agency order, risk additional regulatory retaliation, and endure years of uncertainty. Unsurprisingly, it appears no company has ever taken that option. Companies instead pay and seek review in a court of appeals—where no jury is available and where factual review is deferential to the agency. Our brief makes another, structural point. The government cannot have it both ways on the statute of limitations. To preserve penalties under the five-year statutory limit, the government treats the FCC’s forfeiture proceeding as “enforcement.” But when faced with the Seventh Amendment, it claims the same proceeding is merely “initial.” A process that is final enough to preserve penalty claims cannot simultaneously be too preliminary to trigger the jury right. We urge the Court to adopt a straightforward rule: when an agency proceeding culminates in final agency action and is treated as enforcement sufficient to preserve civil penalties, it constitutes the adjudication of a legal claim for money. In such cases, the Seventh Amendment requires a jury before liability is conclusively determined. A later, optional enforcement suit cannot retroactively cure a Seventh Amendment violation. At the Founding, the jury’s role was antecedent—not remedial. Because the carriers’ liability was determined before they had access to a jury, the Supreme Court should rule that their Seventh Amendment rights were violated.