T-Mobile is urging the D.C. Circuit Court of
Appeals to reconsider its recent decision upholding the company's $92 million fine for sharing wireless customers' location data.
In a petition filed Monday, the wireless
carrier says that decision conflicts a recent ruling by a different court -- the 5th Circuit Court of Appeals -- which vacated AT&T's $57 million fine for sharing the same type of data.
The new motion come in a dispute dating to 2020, when the Federal Communications Commission proposed fining T-Mobile, AT&T and Verizon for selling access to customers
geolocation data to aggregators that resold the data.
The data sales first came to light in 2018, when The New York Times reported that a Missouri sheriff used geolocation data provided by Securus
Technology to track other law enforcement officers, without court orders. Securus had 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.
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Last year, the FCC fined the three carriers nearly $200 million. They 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. (Verizon's $47 million fine was upheld earlier this month by the 2nd Circuit; it's not yet clear whether
Verizon will seek a new hearing.)
In April, the 5th Circuit struck down AT&T's $57 million fine on the
grounds that it violated the company's right to trial by jury.
Last month, a three-judge panel of the D.C. Circuit came to the opposite conclusion regarding T-Mobile, ruling
that the company had waived its right to a jury trial by paying the fine. The panel said T-Mobile had the right to refuse to pay, at which point the FCC could have initiated a collection action that
would have entitled the carrier to a jury trial.
"The statutory procedure at issue allowed the carriers to obtain a jury trial before suffering any legal consequences," Circuit
Judge Florence Pan wrote in an opinion joined by Judges Bradley Garcia and Karen Henderson. "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."
T-Mobile says in its bid for reconsideration that panel's analysis was incorrect, arguing that failing
to pay the fine would have had consequences -- including a risk of "reputational harm."
T-Mobile also wants the court to reconsider whether the location data at issue was
subject to privacy rules.
The company previously argued that the FCC could only impose a privacy fine for revealing data directly tied to voice services -- meaning that data
that would reveal customers' locations when they were talking on the telephone. The location data at the center of the fine came from non-voice services -- such as the Life Alert program, which sends
medical help to people.
The appellate panel rejected that argument, writing that carriers were legally required "to protect all customer location information, regardless of
whether the customer is on a call."
T-Mobile says that holding should be reconsidered for several reasons, including that it "exposes carriers to liability for massive swaths
of data -- all information relating to a device’s location."
The company is seeking a new hearing in front of the entire D.C. Circuit.