Telecom Groups Challenge FCC Data Breach Rules as Defiance of Congress
The Sixth Circuit is weighing whether the FCC's updated notification requirements illegally bypass a previous congressional veto.
The U.S. Court of Appeals for the Sixth Circuit is reviewing a legal challenge to the Federal Communications Commission's updated data breach notification rules. The dispute centers on whether the agency is illegally attempting to revive regulations that Congress previously overturned.
Industry petitioners—including the Ohio Telecom Association, Texas Association of Business, CTIA, NCTA, and USTelecom—argue that the FCC's new requirements are "substantially the same" as a 2016 rule. This earlier regulation was part of the Broadband Privacy Order, which Congress voided in 2017 using the Congressional Review Act (CRA). The petitioners contend that by reissuing a functionally identical regulation, the FCC is attempting an "end-run" around congressional authority.
The CRA Conflict
The legal battle hinges on the specific constraints of the Congressional Review Act. When Congress uses the CRA to void an agency rule, the law typically prohibits that agency from issuing a new rule that is substantially the same as the one overturned. In this instance, the 2017 voiding of the Broadband Privacy Order was intended to strip the FCC of its breach notification mandates. The recent publication of updated requirements has prompted industry groups to sue, claiming the agency is in direct defiance of congressional intent.
Industry Implications
The outcome of this case will establish a critical precedent regarding the limits of administrative power. Specifically, it will determine the extent to which federal agencies can update or reintroduce regulations after they have been formally rejected by the CRA. For telecommunications carriers, the ruling will directly impact their operational compliance burdens and the specific reporting obligations they face when customer data is compromised.
Current Legal Status
While a panel of the Sixth Circuit initially upheld the FCC's rule, the full court (en banc) is now being urged to rehear the case. This push follows an amicus brief from TechFreedom, which argued that agencies are "creatures of Congress" and must listen closely to the people's representatives. The court must now decide if the FCC's interpretation of the CRA is permissible or if the rules constitute an unlawful reissuance of a rejected policy.