Communications and Technology Alert: FCC Requests Review of Fifth Cir. AT&T Decision; October Open Meeting Agenda; Sixth Cir. Data Breach Ruling Amicus Brief; House Subcomm. Chair Prioritizes Permitting Reform [Vol. XXII, Issue 41]
Commission Appeals Fifth Circuit Decision Vacating AT&T Fines
Last week, the FCC filed a petition for the Court to review a Fifth Circuit decision that vacated a $57 million fine the Commission issued to AT&T in 2024. The lower court's decision was based on a 2024 Supreme Court ruling that found some internal agency enforcement actions deprive parties of their Seventh Amendment right to a jury trial (Securities and Exchange Commission v. Jarkesy). In a similar case last month, the Second Circuit upheld a $47 million fine the FCC issued to Verizon, setting up a circuit split. In the FCC's new petition, it argues that if the Fifth Circuit decision is upheld it will "significantly impede the FCC’s enforcement of the Communications Act." For more information, please contact Wes Wright (wright@khlaw.com; 202.434.4239) or Tim Doughty (doughty@khlaw.com; 202.434.4271).
Commission Announces Tentative Agenda for October Open Meeting
Last Tuesday, the Commission announced that nine items would be tentatively under consideration at the upcoming Open Commission Meeting, scheduled for October 28, 2025 at 10:30 AM ET. The agenda includes two notices of proposed rulemaking to modernize licensing for satellite services, which propose overhauling the Commission’s rules to replace Part 25 with a new addition, Part 100, and more efficient usage of spectrum bands above 24 GHz for Upper Microwave Flexible Use Services (UMFUS) and Fixed Satellite Services (FSS). The Commission could also consider a further notice of proposed rulemaking to streamline caller identification and verification procedures. For more information, please contact Wes Wright (wright@khlaw.com; 202.434.4239) or Tim Doughty (doughty@khlaw.com; 202.434.4271).
Parties Urge Sixth Circuit to Review Data Breach En Banc Decision
The Washington Legal Foundation, National Federation of Independent Business (NFIB), Small Business Legal Center, Inc., and the Buckeye Institute filed a joint amici curiae brief requesting the Sixth Circuit Court of Appeals review an en banc decision upholding a Commission Order on data breach reporting requirements. The Order, adopted in 2023, expanded the scope of the Commission’s data breach notification rules to cover categories of Personal Identifiable Information (PII), and expanded the definition of “breach” to include inadvertent disclosures of customer information, with limited exceptions. The Sixth Circuit, ruling en-banc, rejected a challenge earlier this year that the Commission did not have authority to extend the data breach requirements in the 2023 Order because the rules were previously rejected in a nullified CRA resolution, instead finding the rules were not “substantially similar”. The instant amici brief filed takes issue with the en banc decision, stating it allows the Commission to undermine CRA resolutions by adopting portions of nullified rules in separate proceedings to avoid scrutiny. For more information, please contact Wes Wright (wright@khlaw.com; 202.434.4239) or Tim Doughty (doughty@khlaw.com; 202.434.4271).
House Communications Subcommittee Chair Prioritizes Permitting Reform
House Communications and Technology Subcommittee Chairman, Richard Hudson (R-NC), stated that his top priority is implementing permitting reforms at an event hosted by Punchbowl News on October 9th. Hudson argued that such reforms are needed to ensure the efficient deployment of BEAD funding and implementation of infrastructure to support the 800 MHz of spectrum Congress instructed the FCC to auction in the July budget reconciliation bill. The subcommittee recently reviewed nearly thirty bills that aim to streamline telecom infrastructure permitting. For more information, please contact Casey Lide (lide@khlaw.com; 202.434.4186) or Sean Stokes (stokes@khlaw.com; 202.434.4193).
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