8th Circuit kills FCC broadband anti-discrimination rule on disparate-impact grounds

The US Court of Appeals for the 8th Circuit unanimously vacated the FCC’s 2023 broadband anti-discrimination rule, ruling the agency overstepped its statutory authority on two fronts: imposing liability for disparate impact rather than only disparate treatment, and extending the rule’s reach to entities that don’t directly sell Internet service to subscribers. The three-judge panel, all Republican appointees, handed a clean win to telecom and cable lobby groups that had challenged the order.

FCC Chairman Brendan Carr, who voted against the rule when it was adopted under the Biden administration, framed the decision as a victory for nondiscrimination and likened the rule to DEI policies. Carr asserted the rule would have forced providers to discriminate based on protected characteristics but offered no mechanism for how that would occur. Public Knowledge’s legal director countered that the ruling guts the FCC’s only practical lever against documented patterns where lower-income areas and communities of color receive slower speeds, older equipment, and worse pricing for identical service tiers.

The operational consequence is a much higher evidentiary bar: without disparate-impact analysis, the FCC must surface explicit intent to discriminate — written or otherwise provable — before acting on a complaint. That standard rarely produces enforceable cases in modern broadband deployment decisions, effectively neutralizing the complaint mechanism the 2023 order established.