Ohio Telecom Ass’n v. FCC

The Congressional Review Act (CRA) provides for expedited procedures by which Congress may enact legislation in the form of a joint resolution resolution “disapprov[ing]” a newly promulgated agency rule and providing that the disapproved rule “shall have no force or effect.” 5 U.S.C. § 802(a). Such legislation, if enacted, nullifies the entirety of the rule identified in the resolution. It also has the consequence of prohibiting the agency that promulgated the disapproved rule from reissuing the rule “in substantially the same form” or from issuing “a new rule that is substantially the same as” the disapproved rule, unless legislation subsequent to the disapproval resolution authorizes the agency to do so.

In this case, telecommunications companies sued the Federal Communications Commission to challenge imposing reporting requirements on telecommunications carriers in the event of data breaches involving customers’ personally identifiable information. Among other arguments, the companies contended that the rule violated the CRA because it was similar to a section of a larger rule previously disapproved by Congress under the CRA. The district court ruled for the FCC, and the companies appealed to the Sixth Circuit, which later granted en banc review.

At the en banc stage, Public Citizen filed an amicus brief in support of the rule. The brief explains that the statutory text, read in light of other statutory provisions, established legal meanings, and context, confirms that the CRA’s prohibition on issuance of new rules that are “substantially the same” as rules disapproved by Congress does not apply to rules that are non-trivially different in substance from a disapproved rule.