This week, TechFreedom filed an amicus brief urging the full U.S. Court of Appeals for the Sixth Circuit to rehear a challenge to the Federal Communications Commission’s (FCC) 2024 Data Breach Reporting Requirements Rule.
In 2016, the FCC issued the omnibus Broadband Privacy Order, which included the 2016 Data Breach Notification Rule. In 2017, Congress used the Congressional Review Act (CRA) to pass a joint resolution rejecting the order. The joint resolution prohibited the FCC from reissuing the order, including the Data Breach Notification Rule, “in substantially the same form” or issuing a “new rule that is substantially the same.”
Despite the joint resolution, the FCC reissued a slightly-revised Data Breach Reporting Requirements Rule in early 2024. To justify reissuing substantially the same rule, the FCC argued that the CRA only prohibits reissuance of “the 2016 Privacy Order as a whole.” In a split decision, the panel upheld the FCC’s interpretation, concluding: “we must compare the 2024 Order to the entire 2016 Order and determine whether they are substantially the same.”
“The panel’s interpretation of the CRA allows agencies to resurrect disapproved rules in piecemeal form,” said Andy Jung, Associate Counsel at TechFreedom. “Now, agencies can easily circumvent congressional disapproval by subdividing disapproved rules and issuing the subparts in separate orders: they can slice and dice rejected rules in any number of ways, and the panel would hold that the new rules are not ‘substantially the same.’”
“The panel’s ruling nullifies congressional disapproval and shifts legislative power to agencies,” Jung concluded. “Since enacting the CRA in 1996, Congress has passed thirty-six joint resolutions disapproving of rules. The panel’s CRA holding renders these congressional disapprovals meaningless, undermining the legislative authority of Congress.”
The case is Ohio Telecom Association v. FCC, Nos. 24-3133, 24-3206, 24-3252 (6th Cir.).
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Find this brief and release on our website, and share it on Twitter and Bluesky. We can be reached for comment at media@techfreedom.org. Read our related work, including:
- How the FCC Plans to Give Itself Control Over Data, Substack (July 18, 2024)
- Our original amicus brief in this proceeding (May 29, 2024)
- Our amicus brief in International Dark Sky v. FCC (June 20, 2023)
- Our comments to the FCC on the assessment and collection of regulatory fees for FY-2023 (June 14, 2023)
- Our comments to the FCC on sponsorship identification requirements for foreign government-provided programming (Feb. 1, 2023)
- Our comments to the FTC on the petition for rulemaking to prohibit the use on children of design features that maximize for engagement (Jan. 18, 2023)
- Our comments to the FTC on protecting kids from stealth advertising in digital media (Nov. 18, 2022)
- Our comments to the FTC on their Draft Strategic Plan for FY 2022-2026 (Nov. 30, 2021)
About TechFreedom:
TechFreedom is a nonprofit, nonpartisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.