On May 6, 2026. the U.S. Court of appeals for the 8th Circuit issued a decision in the case addressing petitions for review of the FCC’s November 2023 Report and Order (Order) on eliminating digital discrimination (see ICORE Blog dated 12/6/23). The Court’s decision vacates in full the FCC’s “digital discrimination of access” rules that were adopted in the November, 2023 Order finding that the FCC exceeded its statutory authority.
The FCC was required to address the issue of Digital Discrimination as a result of Section 60506 of the Infrastructure Investment and Jobs Act which became law in November, 2021. The Order defined “digital discrimination of access” as policies or practices, not justified by genuine issues of technical or economic feasibility, that differently impact consumers’ access to broadband internet access service based on their income level, race, ethnicity, color, religion or national origin, or are intended to have such differential impact. Further, the Order stated that the FCC would investigate conduct alleged to be motivated by discriminatory intent, as well as conduct alleged to have discriminatory effect. The Order’s rules extended not only to providers of broadband internet service, but also to other entities (e.g. contractors, infrastructure owners, and other third parties) that facilitate and otherwise affect consumer access to broadband internet service.
Various Telecommunications and broadband industry groups filed petitions for review of the Order in several Federal Circuit Courts and these petitions were consolidated in the 8th Circuit Court. A three-judge panel of the 8th Circuit ruled in favor of the industry petitioners on two key issues and overturned the entire Order. The Court found that Section 60506 of the Infrastructure and Jobs Act does not authorize the FCC to impose disparate impact liability and instead requires rules designed to address discriminatory intent. In addition, the Court found that the FCC exceeded its statutory authority by applying the rules to entities other than broadband internet service providers. In its ruling, the 8th Circuit points out that vacating the Order does not end the FCC’s obligation to address digital discrimination per Section 60506 presumably through a new rulemaking proceeding. In addition, it’s possible that one or more Parties to this case may appeal the 8th Circuit’s ruling.
In response to the 8th Circuit’s ruling, FCC Chairman Carr issued a statement applauding the Court’s decision. Chairman Carr calls the Court’s decision another common-sense win for non-discrimination and points to the fact that he dissented in 2023 to the FCC’s adoption of the sweeping and unlawful ‘digital equity’ rules that have now been vacated.
As discussed above, the FCC may now institute a new rulemaking proceeding to address digital discrimination and/or appeals to the 8th Circuit’s decision are certainly possible. We will continue to follow this issue and will provide updates as the situation unfolds.
