FTC arguments rejected
Summarizing the FTC’s arguments, judges said the agency contended that US law “did not require the Commission to conduct the preliminary regulatory analysis later in the rulemaking process,” and that “any alleged error was harmless because the NPRM addressed alternatives to the proposed amendments to the 1973 [Negative Option] Rule and analyzed record-keeping and compliance costs.”
Judges disagreed with the FTC, writing that “the statutory language, ‘shall issue,’ mandates a separate preliminary analysis for public review and comment ‘in any case’ where the Commission issues a notice of proposed rulemaking and the $100 million threshold is surpassed.”
Numerous industry groups and businesses, including cable companies, sued
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