Whether imposing massive penalties without providing either clear ex ante guidance or a meaningful post hoc opportunity to cure satisfies the fair notice requirements of the Due Process Clause and administrative law

QUESTION PRESENTED In this case, the FCC has imposed nine-figure penalties without supplying the most basic component of due process: “fair notice of conduct that is forbidden or required.” FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012). The FCC has tried to reconcile competing congressional commands to raise funds by auctioning off valuable spectrum and to ensure the full participation of small businesses by offering them substantial discounts. Given the value of the spectrum at issue, the FCC expects and allows small businesses to partner with large companies, while prohibiting the latter from exercising de facto or de jure control over the former. The rules for de jure control are clear, and there is no dispute they were fully satisfied here. The rules for de facto control are anything but clear and amount to nothing more than an ad hoc agency judgment based on the totality of the circumstances. For years, the FCC managed to square that amorphous standard—and the fact that the FCC evaluates control only after an auction is closed, and requires small-business bidders to pay the full, nondiscounted price if it finds them to be controlled—with fair-notice requirements by providing an opportunity to cure after identifying de facto control deficiencies. Here, however, under pressure from congressional critics and dominant providers, the FCC provided only the empty formalism of an opportunity to cure without engaging with petitioner or identifying the conduct necessary to avoid a nine-figure penalty. The question presented is: Whether imposing massive penalties without providing either clear ex ante guidance or a ii meaningful post hoc opportunity to cure satisfies the fair notice requirements of the Due Process Clause and administrative law.