The House voted today to adopt a joint resolution to repeal the FCC’s broadband privacy rules, following the Senate’s vote to adopt the same resolution last week. President Trump is expected to sign the resolution into law, which overrules the FCC rules that were set to go into effect later this year.
The mechanism for this repeal was the Congressional Review Act (“CRA”), 5 U.S.C. § 801, which prevents agency rules from taking effect upon the passage of a joint resolution by Congress enacted into law. The CRA also prevents the FCC from reissuing a rule that is “substantially the same” as the repealed rule absent further congressional action. Until this past month, the CRA had only been successfully used once (in 2001), and the scope of the prohibition on reissuing rules that are “substantially the same” as the repealed rule has never been construed by a court.