Eighth Circuit Denies Industry Petition for Expedited Briefing in Digital Discrimination Challenge

WASHINGTON, March 21, 2024 – The Eighth Circuit Court of Appeals on Wednesday denied an industry motion for expedited briefing and oral argument schedule in the consolidated challenges to the Federal Communications Commission’s digital discrimination rules. 

The order, adopted by the commission in November, is aimed at preventing disparate broadband access based on race, income, and other demographic characteristics, known as digital discrimination.

The rules take up a “disparate impact” standard for identifying that discrimination, meaning internet providers and other entities that facilitate broadband access could be in violation of the rules even if they are not intentionally withholding quality internet from a protected group.

The move drew legal challenges from industry groups arguing the rules are more broad than is allowed by the Infrastructure Act and from some public interest groups seeking a more formal complaint process, adding up to 16 total challenges so far. Those were consolidated into a single case before the Eighth Circuit. The window for more petitions to be filed closes on Friday, March 22, when the rules go into effect.

Industry petitioners, including major broadband trade groups like USTelecom, NCTA, and ACA Connects as well as the U.S. Chamber of Commerce, wanted an expedited schedule to allow the court to issue a decision before September 22, when the agency will begin to enforce its new rules. 

The groups argued their members would be bogged down defending themselves against complaints and “become subject to onerous penalties, including monetary forfeitures,” if the court didn’t issue a ruling before the enforcement window. They proposed a schedule that would put oral arguments in mid-June.

The FCC opposed that motion, saying it would require “overlength briefs totaling at least 80,000 words” and wouldn’t give the court enough time to prepare for oral arguments without a special session during summer recess. The agency’s proposed schedule would put oral arguments “at the court’s convenience,” sometime after August 16.

“The order merely provides that, as of that date, the FCC may (not will) commence (not conclude) disparate impact investigations,” the agency wrote. “Any such investigations would not immediately (or even necessarily) lead to monetary penalties.”

The court ultimately sided with the FCC.

“There’s no current briefing schedule in effect,” said Jennifer Dickey, deputy chief counsel at the Chamber of Commerce's litigation center, at an FCBA event on Wednesday. “We’ll have to see if the Eight Circuit decides to issue one on its own or if industry petitioners and the FCC can come to an agreement on the schedule.”

The court approved motions from the two public interest challengers, Media Alliance and Great Public Schools Now and the Benton Institute for Broadband and Society, to intervene on the FCC’s behalf against the industry petitioners, as they don’t want the rules entirely thrown out.

It’s also an open question whether the complaints brought by those groups, which seek a more formal complaint process, will be heard on a separate schedule from the industry petitioners.

“That’s all very much up in the air,” Dickey said.

Correction: This story was updated to correctly reflect Jennifer Dickey's name and position.