FCC Data Breach Order Under Review, Agency Says

WASHINGTON, Oct. 1, 2025 – The Federal Communications Commission’s order expanding its data breach rules is the subject of “ongoing internal review,” the agency told federal judges on Monday.

The U.S. Court of Appeals for the Sixth Circuit upheld the rules last month, ruling the FCC wasn’t blocked from implementing the rule despite a 2017 Congressional action nullifying a larger package of FCC policies order that included a rule similar to the one adopted in 2023.

The telecom trade groups that challenged the rules asked judges Monday to rehear the case. The same day, the FCC said the court should simply hold the case in abeyance, or put it on pause, because it was evaluating the order at issue anyway.

“The Commission now has three sitting members, only one of whom (Commissioner Gomez) voted to approve the Order, and is in the process of evaluating the agency’s past actions, including the Order challenged here,” the agency wrote. “Accordingly, the Commission respectfully submits that an order holding this case in abeyance is an appropriate and efficient step in consideration of the agency’s ongoing internal review.”

FCC Chairman Brendan Carr, a commissioner at the time, opposed the rules, which were passed when the agency was still under Democratic control. The FCC now has a 2-1 Republican majority. 

The agency used very similar language this summer when it asked judges to pause a lawsuit against another order that allowed the FCC’s E-Rate subsidy to support Wi-Fi on school buses. On Tuesday, the FCC voted along party lines to reverse that order and another item that also expanded the E-Rate program.

The data breach rules expanded the agency’s definition of a breach and expanded the categories of data covered by the rules, both having the effect of increasing reporting requirements on telecom providers.

“The FCC’s own request for abeyance – so that it can reconsider the order itself – strongly suggests that the FCC agrees with Petitioners that the 2024 Reporting Rule and the panel decision are legally flawed,” the trade groups said in a Tuesday filing. 

The groups in the case include CTIA, which represents the major 5G carriers, NCTA, which represents the cable industry, and USTelecom, which represents an array of major ISPs and other companies in the industry.

Even if the Carr FCC ultimately overturns the rules, which isn’t certain, the telecom industry wouldn’t be satisfied. The rules weren’t expected to be enforced under Carr, and the precedent that Congressional Review Act nullifications don’t permanently ban all aspects of a blocked rule is really what the trade groups had been looking to avoid.

The trade groups said the court should only pause the case after rescinding its August order, thus repealing that precedent.

The August decision was “exceptionally consequential because it hands agencies a blueprint for gutting CRA disapprovals,” the groups wrote Monday when they asked for a rehearing.

“Since January 2025, Congress has successfully used the CRA 16 times to strike down agency orders issued during President Biden’s administration,” the industry groups wrote. “Yet under the panel majority’s approach, agencies could easily circumvent every one of those disapprovals.”

They said they expected five outside groups to file amicus briefs Monday in support of rehearing the case and overturning the court's ruling.

As a result of the government shutdown, the vast majority of FCC employees are currently furloughed, likely delaying the internal review for the duration of the shutdown.

FCC and Department of Justice attorneys asked the U.S. Court of Appeals for the D.C. Circuit Wednesday to pause another case because of a significant reduction in their workforces.