8th Circuit Told to Reject Major Questions Doctrine in Digital Discrimination Challenge

The Infrastructure Investment and Jobs Act (IIJA) explicitly requires that the FCC "regulate to achieve equal access to broadband" and "authorizes [the] FCC's disparate-impact rules," a consumer advocacy groups said in a joint filing Friday at the 8th U.S. Circuit Appeals Court (see 2401300089). In addition, the groups argued that the major questions doctrine didn't apply in this case.

The Constitutional Accountability Center (CAC) also weighed in, saying in an amicus curiae filed Monday that the "economic and political significance of an agency action, no matter how great, cannot alone trigger the major questions doctrine" so long as the action "fits neatly within the language of the statute."

Media Alliance, Great Public Schools Now and the Benton Institute for Broadband & Society said in an intervenors brief (docket 24-1179) that the Minnesota Telecom Alliance's (MTA) challenge of the FCC's digital discrimination rules is "meritless" because it asks the court to "override the statute's plain text with a framework Congress chose not to employ."

The infrastructure law's Section 60506 "unequivocally states Congress's intent," the groups said. "Congress premised its goal on providing equal opportunity," they said, "which is the foundation of disparate-impact coverage." MTA's claim that the section would "conflict with IIJA's broader goals" is "improperly myopic," the advocacy groups said, adding that the petitioner's brief "amounts to little more than policy complaints, not legal disputes." The groups said that this section's subsection (b) also "commits [the] FCC to accomplishing a result and affords [the] FCC flexibility for how to get there."

"Congress could have instructed [the] FCC merely to make discrimination unlawful, but instead it required [the] FCC to 'prevent' discrimination," the groups said. They also noted that Section 60506's inclusion of technical and economic feasibility consideration supports the use of a disparate-impact framework. "In most disparate-treatment cases, technical and economic feasibility is irrelevant," the groups said: "No technical issue could justify intentional, race-based discrimination."

"When an agency claims authority that fits poorly within a statute’s overall regulatory structure, this supports applying the major questions doctrine," CAC said, "but the incongruence must be so severe that it distorts the statute beyond recognition." The "potential for encroachment on congressional authority underscores the need to employ the doctrine only in truly extraordinary cases," CAC said. It urged the court to hold that the major questions doctrine doesn't apply in this case.

The advocacy groups agreed, saying that the establishment of a disparate-impact framework isn't an extraordinary issue of economic and political significance. The economic effects of the FCC's rule "extend only as far as the economic effects of policies or practices," the coalition noted.