Civil Rights Project: 8th Circuit Should ‘Invalidate’ FCC’s Digital Discrimination Rule

The American Civil Rights Project supports the 20 industry petitioners arguing that the 8th U.S. Circuit Appeals Court should vacate the FCC’s digital discrimination broadband rule since it runs afoul of the law and isn’t based on clear congressional intent (see 2404230032), according to the nonprofit’s amicus brief. It was filed Wednesday in docket 24-1179.

The policy embedded in the FCC’s rule is “unprecedented,” the brief said. Congress included a “first-of-its-kind provision” in Section 60506 of the Infrastructure Investment and Jobs Act, which the FCC’s rule “then expanded,” it said. Unlike previous congressional legislation, the statute “extends the frame across which Congress bars discrimination beyond the kind of demographic characteristics American nondiscrimination law often polices” to address discrimination based on income level, it said.

The rule imposes into this “uncharted territory” disparate-impact liability for every entity that affects broadband service and infrastructure, the brief said. That includes everything from the deployment of broadband infrastructure, to network upgrades and maintenance, to customer service and pricing, it said.

As the FCC interprets the statute, “it’s impossible for regulated parties to structure their affairs as to avoid presumptive violation” of that statute, said the brief. The statute, as the agency interprets it, “therefore is unconstitutionally vague and violates equal protection rights,” it said. Moreover, by "presumptively denying" private parties any apparent legal use of their assets, the statute “imposes an unconstitutional regulatory taking absent billions in compensation,” it said.

Several provisions in Section 60506 “extend the panorama of the federal government’s nondiscrimination laws in an unprecedented direction,” directly highlighting the conflicting policies the statute establishes and indirectly choosing among them, said the brief. While those provisions echo “many of the classifications familiar from our civil rights laws in barring discrimination based on race, ethnicity, color, religion, and national origin,” they are the first known federal “enactments” to have added income level to that list, it said.

There are “real and serious” issues that render the statute unconstitutional, said the brief. Unless a “saving throw” allows the 8th Circuit to avoid the merits of those constitutional issues, the judges must “invalidate” the statute, the rule and the FCC’s Nov. 20 order imposing the rule, it said.