Now that President Donald Trump has signed the bill to rescind the Federal Communications Commission's privacy rules, what happens next?
The rules were rolled back thanks to the little-used Congressional Review Act, which permits the legislature to nullify a covered rule adopted by a federal agency if Congress acts within 60 "session" days.
Senate lawmakers voted 50 to 48 to rescind the rules while the House of Representatives said yes by a margin of 215 to 205. President Donald Trump signed the joint resolution on April 3.
But in addition to allowing a rule to be repealed, the CRA also prohibits agencies from reissuing a new rule that is "substantially the same" as the disapproved rule, "unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule." FCC Chair Ajit Pai has stated that he intends to revisit privacy regulations for ISPs that are in alignment with the Federal Trade Commission's privacy philosophy, but how that could play out given the CRA prohibition remains an open question.
FCC Commissioner Mignon Clyburn and FTC Commissioner Terrell McSweeny released a joint statement after the Senate vote cautioning that the legislation "will frustrate the FCC's future efforts to protect the privacy of voice and broadband customers."
Even Pai expressed uncertainty about the next steps during a recent Commission meeting. What happens after the President's signature depends "on the interpretation of the Congressional Review Act and other legal and regulatory provisions," he said, adding that the Commission has pending petitions to reconsider the rules currently before it. "But we haven't yet had a chance to study what those might be," Pai said.
Why it matters: Could a new set of privacy rules be drafted that would differ enough from the first effort to satisfy the CRA standard? Or has the use of the statute to rescind the rules foreclosed the FCC from promulgating a new version? With the lack of precedent under the CRA—the law has only been used once before the current administration, although Republican lawmakers have already invoked it seven times in the last three months to revoke regulations—the future of privacy regulations from the FCC remains unclear.