Bloomberg Law: Net Neutrality Ruling Foreshadows an FCC Defeat on Privacy Rule 

Congress undid the FCC’s 2016 broadband privacy rule, which included data breach notification requirements, with a resolution of disapproval under the CRA in 2017. The law prohibits agencies from readopting disapproved rules—or “substantially similar” ones—without specific authorization from Congress.

The Ohio Telecom Association argued the commission made “no attempt” to explain how its 2023 reporting rule “is not the same or substantially similar to the one nullified” in 2017. Both Republican commissioners on the five-member panel voted against adopting the rules at the time, raising CRA concerns.

A ruling on the act’s applicability to the FCC’s rulemaking abilities after a CRA disapproval would be notable, as the congressional tool hasn’t been heavily tested in courts, said Chris Frascella, counsel at the Electronic Privacy Information Center, which filed a friend-of-the-court brief supporting the FCC data breach rule. 

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