Eighth Circuit Vacates FCC’s Digital Discrimination Rules

WASHINGTON, May 6, 2026 – A federal appeals court on Wednesday vacated the Federal Communications Commission’s digital discrimination rules.

Judge James Loken , writing for a panel of the U.S. Court of Appeals for the Eighth Circuit, held that the FCC erred in two respects: by adopting a disparate impact standard and sweeping too broadly in defining who the rules apply to.

“We vacate the final rule in its entirety, leaving the FCC with an unfinished obligation to adopt final rules to facilitate equal access to broadband service,” Loken wrote in the court’s opinion.

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The decision resolves a legal challenge that had remained pending since oral arguments in September 2024.

The FCC’s digital discrimination rules stem from the 2021 Infrastructure Investment and Jobs Act, which directed the agency to “facilitate equal access” to broadband and prevent discrimination based on income, race, and other protected characteristics. The mandate accompanied a $65 billion federal investment in broadband deployment and adoption.

In a 2023 order under then-Chairwoman Jessica Rosenworcel , the FCC interpreted that mandate to prohibit both intentional discrimination and policies that produce unequal outcomes. The agency adopted rules, along party lines, incorporating both disparate treatment and disparate impact standards.

The order also established a broad enforcement framework covering not only broadband providers but also any entities that “facilitate and affect” access to broadband, including contractors, infrastructure owners, and others that might influence service availability.

Telecommunications and broadband industry groups quickly challenged the FCC’s disparate impact rule in six appellate courts across the country. A coalition of public interest organizations, the Benton Institute for Broadband & Society, Great Public Schools Now, and Media Alliance, intervened on behalf of the FCC, but separately served as a petitioner, challenging portions of the rule they believed did not go far enough to combat digital discrimination.

The Eighth Circuit on Wednesday granted industry petitioners’ request for review in part, denied the public interest groups’ petition, and vacated the rules in full.

Court opinion leaves major issues unresolved

Andrew Schwartzman , legal counsel for the Benton Institute, said in directing the FCC to start fresh, the court failed to address several issues that will affect how its future rules may be enforced.

He said the court did not address many issues raised in legal proceedings. Those include what penalties could be imposed, how companies could defend themselves against discrimination claims, whether consumers would have a formal way to file complaints, and how safe harbor provisions tied to federal broadband funding programs would apply.

“Those questions will have to be addressed anew once revised rules are issued,” Schwartman told Broadband Breakfast.

John Bergmayer , legal director for digital rights group Public Knowledge, said the Eighth Circuit misinterpreted Congress’s intent.

“The structure of the statute makes it clear that Congress intended to address the effects of longstanding discriminatory practices – not simply to provide recourse when there is clear evidence of intentional unlawful discrimination,” Bergmayer said in a release.

“The agency must now start over, with a tool that catches almost nothing,” he added.

FCC Chairman Brendan Carr , who dissented from the 2023 order as a commissioner, praised the decision. He said the ruling is consistent with recent Supreme Court precedent.

The FCC must now return to the drawing board and initiate a new notice-and-comment rulemaking to develop revised regulations.

Any new rule is likely to be narrower, focusing on intentional discrimination and applying primarily to broadband providers rather than the broader set of entities included in the 2023 framework.

It remains unclear how quickly the agency will move forward or how it will interpret its statutory mandate in light of the court’s ruling.

Counsel involved in the litigation previously noted the politics of the FCC under Carr make enforcement unlikely, regardless of the Eighth Circuit ruling.

Ruling issued amid wider retreat from disparate impact

The decision comes as the Trump administration has moved to limit the use of disparate impact standards across federal policy.

In April 2025, Trump signed an executive order directing agencies to eliminate disparate impact liability “to the maximum degree possible.” In December, the Justice Department finalized a rule removing disparate impact liability under Title VI of the Civil Rights Act of 1964.

For decades, the standard allowed federal agencies to treat statistical disparities in outcomes as evidence of discrimination even when no discriminatory intent existed.