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

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, President 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. 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,” said Schwartzman.