Cybersecurity Policy Report, Sixth Circuit Grants En Banc Review in Challenge of FCC’s Data Breach Order, (Aug 3, 2026)
Organizations Mentioned:USTelecom
By Lynn Stanton
The U.S. Court of Appeals for the Sixth Circuit (Cincinnati) has granted petitions for en banc rehearing in a challenge of an FCC order extending data breach reporting requirements to certain personally identifiable information (PII) rather than just customer proprietary network information (CPNI), as well as to providers of telecommunications relay services (TRS).
The court set oral argument in the en banc review for Oct. 21. Supplemental petitioner’s and intervenor briefs are due Aug. 31, and supplemental respondent brief is due Sept. 30.
In 2025, a three-judge panel of the Sixth Circuit rejected challenges of the order lodged by the Ohio Telecom Association, the Texas Association of Business, CTIA, NCTA, and USTelecom (CPR, Aug. 15, 2025) and the petitioners, as well as intervenor and TRS provider Hamilton Relay, requested a rehearing en banc.
They argued that the FCC not only was exceeding its authority but was doing so in contravention of a Congressional Review Act (CRA) resolution that had overturned “substantially similar” rules adopted by the FCC in a 2016 order.
Subsequently, the court granted a request from the Commission to hold the case in abeyance while the agency reviewed the challenged order. In May, the court said it would not continue its abeyance beyond June 17, and the FCC told the court in a June 16 status report that it would be unable to finalize its review by June 17 and that it understood that the case would be returned to the active en banc docket.
The Washington Legal Fund, which had filed an amicus brief in support of petitions for en banc review, said in a press release applauding the grant of review, “The CRA is a useful tool for Congress to review the work of executive agencies, but the Sixth Circuit’s decision would render it a nullity. As the brief says, ‘Just as a parent’s instruction to a four-year old not to eat a pie isn’t license to have “just” two or three slices, Congress’s thundering announcement that an overarching rule is devoid of “force or effect” precludes the agency from taking the rule piecemeal back into the Code of Federal Regulations.’”
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