ISPs Seek Rehearing of 6th Circuit Decision Upholding FCC's Latest Data Order
Groups representing ISPs Monday asked the 6th U.S. Circuit Court of Appeals to rehear en banc an August decision upholding the FCC’s data breach notification rules, despite a Congressional Review Act action overturning similar requirements included with other privacy rules in 2017 (see 2508140052). Judge Jane Stranch wrote the 2-1 decision. Judge Richard Griffin dissented, saying the order was unlawful and should be set aside.
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“This case is about whether Congress’s most powerful checks on agency overreach have any real force,” said a petition filed by the Ohio Telecom Association, the Texas Association of Business, CTIA, NCTA and USTelecom. “In a split decision,” the panel “upheld the FCC’s brazen effort to claim regulatory authority that Congress not only declined to confer under the Communications Act, but specifically rejected in enacting a ‘resolution of disapproval’ under” the CRA, the ISPs said in docket 24-3133.
As Griffin argued, “the panel’s ruling hands administrative agencies a ready-made playbook for ‘circumvent[ing] the CRA’: Just reissue disapproved rules piecemeal or in marginally tweaked form, and Congress’s disapproval counts for nothing,” the ISPs said. The petition notes dissents to the FCC order by then-FCC Commissioners Brendan Carr and Nathan Simington, both Republicans.
“The panel’s treatment of the CRA is deeply mistaken and profoundly consequential,” the petition said. The majority decision “compared the 2024 Reporting Rule to the entire 2016 Order, reasoning that the phrase ‘rule that does not take effect (or does not continue)’ actually means ‘rule specified in the joint resolution of disapproval’ -- and then pointing to Congress’s choice to disapprove the entire 2016 Order in its disapproval resolution. … That approach has no basis in the statutory language.”