The 8th U.S. Circuit Court of Appeals has vacated the Federal Communications Commission’s (FCC or Commission) 2023 Digital Discrimination Order, holding that the FCC exceeded its statutory authority under the Infrastructure Investment and Jobs Act. The IIJA directed the Commission to adopt rules to facilitate equal access to broadband internet access, prevent digital discrimination, and develop model policies for state and local governments to implement.
The court ruled that the FCC in the 2023 Order, which adopted rules interpreting digital discrimination of access to include both intentional discrimination and disparate impact, improperly authorized disparate impact liability contrary to the IIJA. The court also agreed with challengers that the 2023 Order swept far beyond what Congress authorized by adopting an overly broad definition of covered entities that included not only broadband providers but those that affect consumer access to broadband such as landlords and contractors.
