GoKawiilAn appeals court today struck down federal rules that prohibit discrimination in access to broadband services, delivering a victory to telecom and cable lobby groups. The court ruling was welcomed by Federal Communications Commission Chairman Brendan Carr, who voted against the Biden-era rules when they were approved in 2023.
The FCC exceeded its legal authority by imposing liability for actions that result in “disparate impact,” instead of merely policing “disparate treatment,” said a ruling by from the US Court of Appeals for the 8th Circuit. The FCC also exceeded its authority by applying the rules to entities that don’t directly offer Internet service to subscribers, according to the ruling issued unanimously by three judges appointed by Republican presidents.
“Today’s appellate court decision is another common-sense win for nondiscrimination,” Carr said today. Carr claimed the rules “would have required broadband providers and many other businesses to discriminate against people based on their race, gender, or other protected characteristics,” but did not explain how the rules would have required discrimination. Carr also compared the rules to diversity, equity, and inclusion (DEI) policies that he has called discriminatory.
John Bergmayer, legal director of advocacy group Public Knowledge, criticized the court decision. “The practical effect is to eliminate a rule that addresses a documented problem,” he said. “Lower-income neighborhoods and communities of color get slower service, older equipment, and higher prices for the same product their richer neighbors buy. After today, the FCC can act only when it proves a smoking-gun case of conscious bias, which almost never exists in writing.”
Rule enabled discrimination complaints
As we’ve previously written, the FCC rules let consumers file complaints about alleged discrimination and define the elements the FCC would examine when investigating whether an entity should be punished for discrimination. The Biden-era order said that “all penalties and remedies will be available when we determine that our rules have been violated.”