You may read headlines that lead you to believe that the courts have restored the Digital Equity Act as a result of a lawsuit by the National Digital Inclusion Alliance (NDIA). The ruling from Judge John D. Bates of the U.S. District Court for the District of Columbia is a lot more complicated than that.
If you’re brave enough to venture into the court order, you’re going to quickly figure out that, unless you are a constitutional lawyer, you aren’t going to understand a lot of the background and discussion inside the order. If you want a plain English summary of the order, I direct you to the excellent summary from the Benton Institute – and even that is challenging to read in places for those not used to reading court orders. Rather than rehash everything in the order, which was done well by Benton, I’m going to cut to the conclusions of the case and talk about what this might mean for those still hoping to get digital inclusion grants.
What did the Court order? The Administration killed the $2.75 billion grant programs that were part of the Digital Equity Act. This suit specifically challenged the termination of the Digital Equity Competitive Grant program, where NTIA made direct grant awards for digital inclusion activities. This suit did not address the Digital Equity Capacity Grant program, where State Broadband Offices were slated to make digital inclusion grant awards.
The Court did not yet order the NTIA to continue with the Competitive Grant program. The order basically eliminated the government’s stated reason for canceling the grant program. The government argued that making grants based on race was unconstitutional. The court agreed with that argument, which is a big win for the Administration, since this is the first Court to so plainly agree with that assertion. But the Court further ruled that if grant requirements based on race are removed, the rest of the lawsuit can continue. The government said in a footnote of their pleading that they would be willing to immediately reinstate the Competitive Grant program if the race issue were removed. The two sides are now required to file a joint status report by August 1 that proposes a schedule for continuing the case.
So what’s next? One possibility is that the government will want to continue to dispute some of the other claims by NDIA, and if that happens, the court case would continue.
The possibility that digital inclusion advocates hope for is that the government will be good on its word and will agree to end the suit now that the race criteria are gone. If that happens, it’s likely that the Court would order NTIA to restart the Competitive Grant program.
Nobody knows what that would mean. NTIA could decide to get moving again with the grant program. However, NTIA might still be reluctant to award these grants if that’s the message they get from the Administration, and they could slow-roll the process, just like they are doing with the BEAD nondeployment funds. NTIA could decide to take a fresh look at the grant rules now that race has been removed and start the process over. Even if NTIA moves forward, I find it unlikely that NTIA would automatically honor the grants that were already awarded and would make everybody apply again. I wouldn’t make any bets that NDIA is going to get a grant award from this program.
The other half of this program is the Capacity Grant program, which was going to give money to states to make digital inclusion grant awards. There doesn’t seem to be any direct ties between this case and that grant program, so it likely stays in limbo, even if the Competitive Grant program restarts.
There is also a big concern that the Administration has recommended no funding for this program in next year’s budget, so the entire program could quietly die through lack of funding, even if NDIA prevails in this lawsuit.
There is a ray of hope here, and digital inclusion folks should continue to hope and should continue lobbying Congress to keep the funding alive and to press NTIA to make the awards. But I can’t foresee anything happening quickly, even if the Court clears this off its docket in August.








