6th Circuit Data Privacy Decision Likely Has Bigger Implications: Cooley
A recent decision by the 6th U.S. Circuit Appeals Court upholding the FCC's 2024 data breach notification rules (see 2508140052) likely has broader implications for the agency, lawyers at Cooley wrote Wednesday. “The decision’s expansive reading of Section 201(b) [of the Communications Act] suggests that the FCC’s power extends beyond the actual provision of service to cover all ‘practices’ in support of providing the service, which could lead to more aggressive regulation in the future,” they wrote.
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The decision also endorses “a fairly narrow view” of the Congressional Review Act (CRA), “which would give agencies that had rules overturned an incentive to revisit their earlier decisions and readopt portions of rules that had been rejected, or to readopt the old rules with a small number of changes,” the lawyers said. The decision “is particularly significant because it is the first case to consider what agencies can do following a CRA resolution.” Congress passed a CRA in 2017 nullifying an earlier version of the rules.