Trump EO Could Gut FCC Digital Discrimination Rules

WASHINGTON, April 28, 2025 – A directive from President Donald Trump last week may pose a direct threat to the legal foundation of rules designed to prevent discriminatory practices by internet service providers adopted by the Federal Communications Commission in 2023. 

Last Wednesday, Trump issued an executive order which sought to eliminate the disparate impact liability across federal agencies. The order declared it was now federal policy to eliminate the disparate impact standard “in all contexts to the maximum degree possible,” asserting that this doctrine undermines constitutional principles and national values.

“A bedrock principle of the United States is that all citizens are treated equally under the law.  This principle guarantees equality of opportunity, not equal outcomes,” the EO stated.

Under civil rights law, "disparate treatment" refers to intentional discrimination, while "disparate impact" — now in the crosshairs — addresses policies or practices that are neutral on their face but still have a discriminatory effect. 

The disparate impact standard, first recognized by the Supreme Court in Griggs v. Duke Power Co. (1971), and has been widely used in employment, housing, education, and credit discrimination cases.

The standard was central to the FCC’s digital discrimination framework. The commission adopted the rules in November 2023, interpreting the law to allow enforcement even in cases where disparate effects exist without proof of intentional discrimination.

FCC Chairman Brendan Carr, who opposed the rules and has specifically criticized the use of the disparate impact standard, told Broadband Breakfast Monday that the agency was still reviewing the executive order and getting familiar with its potential implications for the digital discrimination rules.

The FCC was directed to develop the digital discrimination rules under Section 60506 of the Infrastructure Investment and Jobs Act of 2021, which required the FCC to prevent "digital discrimination of [Internet] access based on income level, race, ethnicity, color, religion, or national origin." 

The FCC’s rules are currently being challenged in the U.S. Court of Appeals for the Eighth Circuit by a coalition of broadband industry groups, including USTelecom, NCTA – The Internet & Television Association, and WISPA – the Association for Broadband Without Boundaries.

The Trump administration's new policy could further bolster arguments that the FCC’s disparate impact approach exceeded its legal mandate and may intensify pressure on the FCC to revisit or rescind its digital discrimination rules.

Under Trump’s executive order, federal agencies must assess by June 7  “all pending investigations, civil suits, and positions” for compliance with the new policy. By July 22 agencies must evaluate existing consent judgments and permanent injunctions that rely on a disparate impact standard and take action consistent with the order.

Relatedly, the Chamber of Commerce submitted a filing in the FCC’s “Delete, Delete, Delete” docket on Friday urging the FCC – without explanation – not to pursue further changes to its digital discrimination rules while the Eighth Circuit litigation remained pending. 

In its filing, the Chamber argued that the FCC should terminate its ongoing notice of proposed rulemaking to modify the rules, claiming the FCC’s efforts were beyond its statutory authority, unnecessary, and contrary to marketplace realities.

Among other concerns, the Chamber pointed to the FCC's proposal to establish an internal Office of Civil Rights to oversee digital discrimination enforcement — a move the group said would exceed the agency’s traditional regulatory role.