Today, the U.S. Court of Appeals for the Eighth Circuit vacated the Federal Communications Commission’s (FCC’s) rules prohibiting digital discrimination.
The FCC adopted the rules in November 2023, after the Infrastructure Investment and Jobs Act (IIJA) — also known as the Bipartisan Infrastructure Law — tasked the Commission with doing so.
The FCC rules aim to prevent digital discrimination, which was defined as limiting access to broadband service due to income level, race, ethnicity, color, religion or national origin. The rules passed via a party line vote of the three Democratic and two Republican commissioners.
The rules touched on six areas: prohibition of disparate treatment and disparate impact; broad coverage; burden-shifting; enforcement of authority; complaint procedures and safe harbor, according to the Benton Institute for Broadband & Society, which was party to the suit the Eight Circuit rules on today.
If it stands, the ruling will have wide-ranging impact, according to Kevin Taglang, the executive editor for communications-related headlines for the Benton Institute.
“The ruling affects every stakeholder in the broadband ecosystem: consumers who believed the rules protected them, broadband providers who challenged them, state broadband officials implementing the Broadband Equity, Access, and Deployment (BEAD) program, digital equity practitioners whose advocacy shaped the rules, and the FCC itself, which is now under an explicit court-recognized obligation to start the rulemaking process over.”
FCC Chairman Brendan Carr celebrated the Eighth Circuit’s decision about the digital discrimination rules via a press release.
“Today’s appellate court decision is another common-sense win for nondiscrimination.” he said. “Back in 2023, I dissented from the Biden FCC’s decision to adopt sweeping and unlawful ‘digital equity’ rules. Those regulations would have required broadband providers and many other businesses to discriminate against people based on their race, gender, or other protected characteristics. As I said at the time, the FCC’s decision to adopt those illegal rules only made it harder for providers to bridge the digital divide and took the FCC’s focus off of our core mission.”
The issue is far from settled. The decision kicked the ball back to the FCC.
“We conclude the Commission exceeded its statutory authority by adopting such a broad definition of covered entities,” the Court’s decision reads. “Thus, the agency exceeded its statutory authority in two respects that are the core of the final rule — disparate impact liability and the definition of covered entities. We therefore vacate the final rule in its entirety, leaving the FCC with an unfinished obligation to ‘adopt final rules to facilitate equal access to broadband internet access service’ in compliance with 47 U.S.C. § 1754.”
According to the Benton Institute, the FCC and other parties have 45 days from today to file a petition for rehearing on the digital discrimination rules before the panel of judges that made today’s ruling or before the full Eighth Circuit Court.
