Texas Groups Ask 5th Circuit to Overrule FCC's Salt Typhoon Ruling
Two Texas associations this week petitioned the 5th Circuit U.S. Court of Appeals asking it to overturn a January declaratory ruling by the FCC in response to the Salt Typhoon cyberattacks. CTIA, NCTA and USTelecom previously asked the FCC to reconsider the ruling (see 2502190081), which now-Chairman Brendan Carr had opposed (see 2501160041). Commissioners approved it 3-2 in the final days of the Biden administration.
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The ruling “upended the Commission’s prior longstanding interpretation of the relevant statute, as well as decades of congressional actions and resulting collaborative partnerships between federal agencies and the private sector that apply a flexible approach to protecting modern broadband networks as technology has evolved and threats to our communications systems have become more complex,” said the Texas Association of Business and Texas Cable Association, which filed the appeal.
The FCC majority “took the view that Congress solved cybersecurity once and for all in 1994 -- before the Internet was even widely available,” the petition said. “In the agency’s telling, a single sentence in the Communications Assistance for Law Enforcement Act affirmatively mandates that every telecommunications carrier in the country ‘ensure’ that none of its communications are ever compromised.” While the agency didn’t “specify precisely what steps would satisfy this new obligation, it provided a non-exhaustive list of security measures that it believed were necessary, but not necessarily sufficient, to comply with CALEA.”
The FCC wrongly interprets the law, the Texas groups said. “A proper reading of CALEA’s statutory text, structure, and purpose shows that Congress did not obliquely impose a universal cybersecurity mandate over 30 years ago.”
The lead lawyer on the petition is Wiley’s Thomas Johnson, a former FCC general counsel. The groups filed in the 5th Circuit, which is widely considered to be among the most conservative of the circuits and the most likely to look askance at an FCC order. The 5th Circuit last year sent shock waves through the telecom industry by finding in a 9-7 en banc decision that the USF contribution factor is a "misbegotten tax.” The U.S. Supreme Court heard oral argument in that case in March (see 2503260061).