Court rejects FCC anti-discrimination rule challenged by internet providers

The FCC defined discrimination in broadband access as “policies or practices, not justified by actual technical or economic difficulties, that differentially affect consumers’ access to broadband Internet based on their income, race, ethnicity, color, religion, or national origin or are intended to have such differences.”

Laws that apply to broadband providers and other organizations, such as landlords, restrict broadband options to homes even when multiple providers are available. “Conducts by entities other than broadband providers may limit access to broadband Internet services as defined,” the FCC said in its ruling.

The FCC’s discriminatory rules were challenged in six federal appeals courts by various groups of telecom and cable companies, and the case was ultimately appealed to the 8th Circuit. Opponents included the NCTA lobby group, wireless CTIA, and USTelecom, all of which represent ISPs in the US. The rules were also challenged by state advocacy groups representing ISPs in Minnesota, Missouri, Ohio, Florida, Alabama, Mississippi, and Texas.

Other court challengers include groups representing rental housing providers and contractors who help ISPs build broadband networks. Republican Congress itself started a legal career to abolish the law in 2024, but it did do not vote.

The law covered “intentional discrimination”

The 8th Circuit judges said the FCC’s rule applies to “intentional discrimination,” or discrimination where “an agency maintains neutral opinions or practices or practices without discrimination, but still affects a protected group,” the court said.

The justices found that “Congress did not authorize a disparity clause” in the Infrastructure Investment and Jobs Act, the US law that allowed the FCC to enact discriminatory digital rules. The order “directs the FCC to adopt final rules ‘prohibiting digital discrimination based on income, race, ethnicity, color, religion, or national origin,'” the appeals court said, adding that “the Supreme Court has repeatedly stated that the ‘reasonable definition’ of discrimination is ‘discrimination.’