Chamber of Commerce Asks Fifth Circuit to Vacate Digital Discrimination Rules

The US Chamber of Commerce is asking a federal appeals court to vacate the Federal Communications Commission’s recent digital discrimination order. As mandated by the Infrastructure, Investment and Jobs Act, the commission adopted rules in November 2023 to prevent gaps in broadband access based on race, income level, and other demographic characteristics – known as digital discrimination. The rules take up a “disparate impact” standard for identifying that discrimination, meaning broadband providers could be in violation even if they are not intentionally withholding adequate internet from a protected group. The Chamber of Commerce, along with two Texas business associations, filed a short petition for review with the Fifth Circuit Court of Appeals on January 19, asking judges to vacate the digital discrimination rules on the grounds they are “arbitrary, capricious,” and “in excess of the Commission’s statutory authority” under the infrastructure law. While its filing last week was brief, the Chamber of Commerce and other industry groups have expanded on their position in comments throughout the FCC’s rulemaking process. In June 2022 the group pushed for a “disparate intent” standard for discrimination, which would only prevent willfully discriminatory conduct, arguing a disparate impact standard would be broader than Congress intended.