FCC v. AT&T · ¶48

That doctrine is a poor ft for this case. The Seventh Amendment applies only to “[s]uits,” and § 503(b)(4) proceedings do not ft the bill. The only suit in the statutory scheme is a § 504 enforcement action, which the Department of Justice is not required to pursue. So if the carriers elect not to pay and await an enforcement action, and the Department decides never to bring one, then the carriers' jury right does not attach in the first place. See Tr. of Oral Arg. 60 (carriers' counsel acknowledging that their unconstitutional conditions claim is “one degree removed” and “not a direct penalty” on the right). The carriers' argument is thus something like a criminal defendant arguing that his right to trial by jury is infringed when the prosecutor decides to dismiss the indictment before trial. A counterintuitive notion, to say the least.

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