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Crossing the ‘T’ in Terminated

9/25/2017 8:00 AM Eastern

There was apparently a last bit of logistical loose-end for the Federal Communications Commission to tie up related to congressional Republicans’ nullification of the former Democratic FCC’s broadband privacy rules.

That loose end has now been tied up. It came in a notice from the FCC published in the Federal Register Sept. 21.

Congress voted in a Congressional Review Act resolution earlier this year to nullify FCC chairman Tom Wheeler’s effort to expand the definition of protected sensitive personal information and require opt-in sharing of ISP information with third parties for marketing purposes.

But that did not nullify the Congressional Record entry for the regulations. The FCC’s new entry in the new record points out that while the CRA treats the rule as if it never went into effect (actually most of it hadn’t before it was nullified), “the Congressional Review Act does not direct the Office of the Federal Register to remove the voided regulatory text and reissue the pre-existing regulatory text.”

So, the FCC entered a new document into the record removing any changes to the original pre-Wheeler framework rules. It made clear it was not making any changes to the Code of Federal Regulations (CFR), which would be subject to public comment and judicial review, aside from upating to reflect what Congress already did, “namely, the nullification of any changes purported to have been made to the CFR by the Report and Order and the reversion to the regulatory text in effect immediately prior to adoption of the Report and Order.” Got it?

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