• by Wendy Davis , Yesterday

An appeals court has upheld T-Mobile's $92 million privacy fine for sharing wireless customers' location data.

The ruling, issued late last week by a three-judge panel of the D.C. Circuit Court of Appeals, grew out of the Federal Communications Commission's April 2024 order fining T-Mobile, Verizon and AT&T for selling access to customers geolocation data to aggregators that resold the data. (The FCC fined AT&T $57 million and Verizon $47 million. T-Mobile's $92 million fine included a $12 million fine for Sprint, which merged with T-Mobile in 2020.)

The carriers paid the fines, then sued to vacate them. T-Mobile brought suit in the D.C. Circuit, while AT&T sued in the 5th Circuit and Verizon sued in the 2nd Circuit.

T-Mobile argued in a November filing that the fine should be struck down for several reasons, including that the FCC hadn't previously said all location data should be treated as “customary proprietary network information,” and therefore subject to confidentiality rules under Section 222 of the Communications Act. Instead, T-Mobile argued, the FCC only required carriers to keep location data confidential when it was directly tied to voice services -- meaning data that would reveal customers' locations when they were talking on the telephone.

The location data at the center of the fine came from “location-based services” connected to non-voice services -- such as the Life Alert program, which sends medical help to people, or roadside assistance company AAA -- T-Mobile said.

The appellate judges rejected T-Mobile's argument on Friday, writing that the location data at issue meets the Communications Act's definition of "customer proprietary network information."

"Congress imposed on carriers a general duty to protect all customer location information, regardless of whether the customer is on a call," Circuit Judge Florence Pan wrote in an opinion joined by Judges Bradley Garcia and Karen Henderson.

T-Mobile also claimed the FCC violated the company's constitutional right to a jury trial when it imposed the fines.

The panel rejected that argument also, writing that T-Mobile waived the issue by paying the fine.

"The statutory procedure at issue allowed the carriers to obtain a jury trial before suffering any legal consequences," Pan wrote. "Thus, regardless of whether it was constitutionally guaranteed, the carriers had the right to a jury trial. They chose not to wait for such a trial and therefore waived that right."

The decision comes four months after a different appellate court, the 5th Circuit Court of Appeals vacated AT&T's $57 million fine on the grounds that the fine violated the company's right to trial by jury.

The FCC recently asked the 5th Circuit to reconsider.

The 2nd Circuit is still considering Verizon's appeal.

The commission initially proposed the fines in 2020 -- around two years after it came to light that a Missouri sheriff used geolocation data provided by Securus Technology to track other law enforcement officers, without court orders. Securus obtained the location data from the phone carriers. Around one year later, Vice Media's Motherboard detailed how a journalist was able to pay a “bounty hunter” $300 to track a phone's location to a neighborhood in Queens.

The major U.S. carriers have said they no longer sell location data.