FCC’s Digital Discrimination Rules Poised for a Narrower Rewrite
Any new rule issued under current FCC Chairman Brendan Car would likely be more limited in scope, panelists said
WASHINGTON, July 16, 2026 – A recent court decision has put the onus on Congress to prevent unintentional discrimination in the broadband communications sector.
A Federalist Society webinar Wednesday focused on the FCC’s next steps after the U.S. Court of Appeals for the Eighth Circuit in May vacated the agency’s 2023 Digital Discrimination Order. Panelists predicted the FCC will likely return with a much narrower rule after the court held that the FCC, under former Chairwoman Jessica Rosenworcel, exceeded its statutory authority in issuing the 2023 rules.
The court held in May that the FCC erred in two respects: by adopting a disparate impact standard and sweeping too broadly in defining who the rules apply to. The decision struck the order in full, sending the FCC to restart.
Any new rule issued under current FCC Chairman Brendan Carr is likely to be more limited, panelists said, focusing on intentional discrimination and applying primarily to broadband providers rather than the broader set of entities included in the 2023 framework.
A disparate impact standard allows regulators to identify discrimination based on the outcome or effect of a policy or practice, even when there is no evidence that an entity intended to discriminate. That differs from intentional discrimination, also known as disparate treatment, which requires proof that an entity purposefully treated individuals or groups differently because of a protected characteristic.
“If Congress wants disparate impact liability, it’s going to need to be clear, and it's going to need to put that in the statute,” said Jennifer Dickey, vice president and deputy chief counsel at the U.S. Chamber Litigation Center, whose organization was among the petitioners challenging the FCC's Digital Discrimination Order.
Dickey said the decision reflects a broader shift in administrative law following the Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo. Following Loper Bright, she said agencies should expect courts to scrutinize statutory authority more closely.
The dispute centered on a section of the 2021 Infrastructure Investment and Jobs Act, which directed the FCC to adopt rules preventing and eliminating “digital discrimination of access” to broadband service. The provision required the agency to address discrimination based on factors including income level, race, ethnicity, color, religion, and national origin.
Christopher Ali, the Pioneers Chair in Telecommunications at Penn State University, responded that disparate impact analysis was necessary because providers have historically deployed different technologies and pricing structures across communities, contributing to unequal access to broadband service.
He maintained that the rule sought to address these persistent disparities while allowing providers to justify decisions based on genuine technical or economic feasibility.
“The FCC had to take into account ‘technical and economic feasibility,’” under the Biden-era rules, Ali said. “If a company could justify their actions based on technical or economic feasibility, then they were considered not to have engaged in digital discrimination.”
Ali predicted the FCC would “do the bare minimum” required by the Eighth Circuit’s mandate that the FCC issue new rules.
“The FCC will have to do something,” Ali said. “They'll probably float a revised digital discrimination rule that will focus only on disparate treatment and intentional discrimination.”
Dickey also pointed to the Supreme Court’s 2015 decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, arguing that any future disparate impact framework adopted by Congress or federal agencies would need to comply with the constitutional limits outlined in that case.
“Both Congress and any agencies are going to need to think about making sure that any disparate impact regimes that they adopt comply with the constitutional guardrails as set forth by the Supreme Court in that Inclusive Communities decision,” she said.
Daniel Kahn, a partner at Wilkinson Barker Knauer who represented industry interests in the litigation, agreed the FCC would likely adopt a narrower rule but argued the agency should instead prioritize policies that encourage deployment, including permitting reform and eliminating barriers to broadband investment.
“Let's keep what's been working – working,” Kahn said, arguing the court’s decision would allow providers to continue expanding broadband networks without fear of broad regulatory liability.
