FCC Exceeded its Statutory Authority by Adopting Disparate Impact Liability
SUMMARY
On May 6, 2026, the U.S. Court of Appeals for the Eighth Circuit (Court) issued an opinion vacating in full the FCC’s “digital discrimination of access” rules, codified at 47 C.F.R. Part 16. The Court held that Section 60506 of the Infrastructure Investment and Jobs Act does not authorize the FCC to adopt a disparate-impact theory of liability, and instead permits rules aimed at intentional discrimination (disparate treatment). The Court also held that the FCC exceeded its authority by defining “covered entities” to include not only broadband internet access service providers, but also a broad range of other entities that may facilitate or affect consumer access to broadband (e.g., contractors, infrastructure owners, and other third parties).
Based on these holdings, the Court vacated the final rules in their entirety, leaving the FCC with an obligation to restart the rulemaking process to adopt rules consistent with the statute.
THIS MAY APPLY TO YOU IF…
You are a Broadband Internet Access Service (BIAS) Provider.
ACTION ITEMS & TIMELINE
Since the Court vacated Part 16, the FCC’s digital-discrimination rules are not currently in effect. The FCC (or another party) could ask for further court review, and the FCC could also start a new rulemaking to adopt revised versions that fit within the limits the Court described. An exact timeline cannot be provided, as an appeal or new rulemaking could take several months – or even several years.
