Appeals Court Strikes Down FCC Digital Equity Rules for Broadband

A federal appeals court struck down Biden-era digital equity rules for broadband on Wednesday after Federal Communications Commission (FCC) Chairman Brendan Carr argued the rules were unconstitutional.  

The ruling, handed down by the U.S. Court of Appeals for the 8th Circuit vacated a rule implementing the Digital Equity Act of 2021. The act was later passed as part of the Infrastructure Investment and Jobs Act (IIJA). It required the FCC’s National Telecommunications Information Administration to create and administer multi-million-dollar grant programs to close the digital divide by improving access to broadband coverage in underserved communities. 

In a statement, Carr called the appeals court’s decision “another common-sense win for nondiscrimination.” He was one of two commissioners who dissented from the FCC’s decision in 2023 to implement the digital equity rules, arguing they would enable discrimination 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,” Carr said Wednesday.   

The original complaint against the rules was brought by a coalition of broadband industry groups and telecom associations – led by the Minnesota Telecom Alliance. The complaint alleged that FCC’s “digital discrimination” rules – implementing the IIJA – overreached what Congress authorized.  

Specifically, the suit said the rules applied “disparate impact” standards, which means that companies could be found guilty of digital discrimination even if they did not intentionally discriminate. The broadband and telecom groups claimed the FCC could then penalize routine business decisions about network deployment and pricing, and that Congress had only intended for the FCC to enforce intentional discrimination. 

However, in a statement, the Benton Institute for Broadband & Society – which was a member of the suing coalition – noted that while the ruling eliminated the disparate impact liability, the FCC must still ensure equal access to broadband under the law.  

“The court was explicit that vacating the rule does not end the FCC’s obligation: the agency retains an unfinished obligation to ‘adopt final rules to facilitate equal access to broadband internet access service,’” the institute said. It added that the FCC must make a new rule, which would “be limited to prohibiting intentional (disparate treatment) discrimination and covering only broadband providers and subscribers.” 

The Benton Institute also noted that with the court’s ruling, “millions of consumers – particularly those in low-income communities and communities of color – [are] without the federal anti-discrimination framework Congress directed the FCC to create.” 

The vacating of the digital equity broadband law follows other efforts under the second Trump administration that target and remove diversity, equity, and inclusion principles from federal rules and regulations.