An appeals court vacated the Biden administration’s “digital equity” rules for the Federal Communications Commission on Wednesday as the federal agency targets diversity, equity, and inclusion policies.
FCC Chairman Brendan Carr, who is leading the commission’s anti-DEI crusade, celebrated the ruling handed down by the U.S. Court of Appeals for the 8th Circuit.
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“Those regulations would have required broadband providers & others to discriminate on the basis of race, gender, & other protected characteristics,” he posted on X. “Nondiscrimination prevails.”
Carr noted he had disagreed with the Biden administration when the FCC adopted the “unlawful” rules in 2023.
In a dissenting statement when he was only an FCC commissioner, Carr criticized the Biden administration for exerting too much control over broadband providers and argued the move was unconstitutional. Congress passed the Infrastructure Investment and Jobs Act in 2021 and directed the FCC to adopt rules that prevent “digital discrimination of [broadband] access based on income level, race, ethnicity, color, religion, or national origin.”
Carr was one of two commissioners who voted against the digital equity rules, contributing to the final 3-2 vote. The commission traditionally has five members, but it currently only has three.
A three-judge panel from the appeals court applied the standard established by the Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo, which overruled the Chevron doctrine that allowed courts to defer to federal agencies for interpreting ambiguous rules. The court’s current jurisprudence now requires judges to interpret the rules themselves.
The final rule was adopted before the landmark Supreme Court ruling. Additionally, Carr cited a more recent court decision as influential in the appeals court’s ruling.
“This new decision follows the Supreme Court’s decision last week making clear that intentional discrimination is unlawful,” he said of the high court’s ruling that restricts race-based redistricting.
Parties to the litigation, including the Benton Institute for Broadband and Society, have 45 days from Wednesday’s decision to file a petition with the three-judge panel or the full court to reconsider.
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In the meantime, the appeals court said the FCC must create a new rule that helps “facilitate equal access to broadband internet access service” without engaging in discrimination.
The agency has recently placed Disney in its crosshairs over alleged DEI policies by requiring the company to file early license renewal applications for its ABC broadcast stations. Carr insists the order only targets unlawful discrimination, but critics have noted it came shortly after late-night show host Jimmy Kimmel joked about President Donald Trump before the assassination attempt last month. Kimmel’s network is ABC.
