Maybe 'They Forgot About It': Year After Digital Discrimination Case, Appeals Court Silent

WASHINGTON, Sept. 25, 2025 – A year after oral arguments, the fate of the Federal Communications Commission’s digital discrimination rules remains unresolved in the U.S. Court of Appeals for the Eighth Circuit.

A three-judge panel, all Republicans, heard the case, Minnesota Telecom Alliance v. FCC, on Sept. 25, 2024. But the court has yet to issue a decision.

In the meantime, the legal landscape has shifted: The Supreme Court’s Loper Bright decision ended Chevron deference, Trump issued an executive order eliminating the disparate impact standard across federal agencies, and digital discrimination rules critic Brendan Carr is now the FCC chairman.

Carr voted against the rules, adopted in 2023, after the 2021 Infrastructure Investment and Jobs Act directed the FCC to prevent “digital discrimination of [Internet] access” based on income level, race, ethnicity, color, religion, or national origin. 

The FCC interpreted that mandate to cover both intentional discrimination, known as “disparate treatment,” and facially neutral practices that disproportionately harm protected groups, known as “disparate impact.” The framework prohibited discriminatory deployment, pricing, or service terms by broadband providers and set up an enforcement mechanism within the FCC.

Agency rules quickly challenged by industry groups

The FCC’s order was quickly challenged in the Eighth Circuit by industry groups including USTelecom, NCTA – The Internet & Television Association, and WISPA. Represented in oral arguments by Sullivan & Cromwell partner Morgan Ratner, they argued IIJA’s statute allowed the agency to regulate only disparate treatment, not disparate impact.

The FCC, represented by Associate General Counsel Jacob Lewis, countered that the plain text of the IIJA supports both intent-based and effect-based protections. He argued that Congress’s use of terms like “equal access” and “equal opportunity” was inherently results-oriented, giving the FCC clear authority even in a post-Chevron world. 

Since oral argument, the Eighth Circuit has not requested supplemental briefing or issued any interim rulings beyond routine docket management, fueling speculation about what the judges are doing and thinking.

Legal experts at a Broadband Breakfast summit in December noted the FCC’s authority to act on the digital discrimination rules remained intact, even after the Supreme Court’s Loper Bright ruling. But counsel involved in the litigation said the politics of the FCC under Carr make enforcement unlikely – regardless of how the court rules.

Andrew Jay Schwartzman, counsel for the Benton Institute for Broadband & Society which intervened in support of the FCC, said the outcome of the Eighth Circuit case may not matter much in practice. 

Whatever the court does, Carr is positioned to shape the rules’ future.

“If, as was possible based on the argument, the court ultimately reverses the FCC, Chairman Carr might not have to do much. If it sends it back for further proceedings, the FCC will do that. If it affirms the earlier decision, I imagine the chairman will initiate proceedings to rescind the earlier decision and state it will not enforce it in the interim,” Schwartzman told Broadband Breakfast.

Maybe 'they forgot about it'

Explaining the Eighth Circuit’s delay, Schwartzman said, “It could be anything.” Maybe, he said, “they forgot about it.” Maybe they realize that “the FCC will rescind the earlier decision anyway.”

Marc Epstein, who represented the Lawyers’ Committee for Civil Rights Under Law and intervened in support of the FCC’s rules in the Eighth Circuit case, struck a hopeful note.

“There has been no movement since oral argument, and we’re hoping for a positive result,” he told Broadband Breakfast. “Congress clearly authorized the FCC to issue disparate impact rules with statutory language requiring the FCC to facilitate equal access to broadband, including by adopting rules preventing digital discrimination of access. We hope the court will let the rules stand.”

Broadband Breakfast reached out to the FCC and to counsel for petitioners, including Morgan Ratner of Sullivan & Cromwell. Neither provided comment by deadline.

This story was updated on Sept. 26, 2025, to include a comment from Marc Epstein of the Lawyers’ Committee for Civil Rights Under Law.