FCC Asks 5th Circuit to Dismiss Molaks' Petition to Block School Bus Wi-Fi E-rate Funding

The FCC seeks the dismissal of the petition for review of Maurine and Matthew Molak to vacate the FCC’s Oct. 25 declaratory ruling authorizing funding for Wi-Fi service and equipment on school buses under the commission’s E-rate program (see 2312200040), according to the commission’s motion Tuesday (docket 23-60641) at the 5th U.S. Circuit Court of Appeals.

The Molaks contend the ruling will increase the federal universal service charge they pay monthly as a line-item on their phone bill to fund the E-rate program's costs. They also contend the ruling undermines the mission of David’s Legacy Foundation, a nonprofit they founded in memory of their son to end cyberbullying, because it enables unsupervised children and teenagers to access social media on school buses.

But neither Maurine nor Matthew Molak filed comments with the FCC on the proposal allowing E-rate funding for broadband on school buses, nor did they raise concerns in a petition for reconsideration or “otherwise participate” in the FCC’s proceedings, said the agency's motion to dismiss. Instead, they first asserted their objections in their petition to the 5th Circuit, it said.

Participation in the proceedings before the agency was “a condition precedent” to judicial review under the Communications Act, plus “a jurisdictional requirement” under the Hobbs Act, said the motion to dismiss. The Molaks’ petition for review “should accordingly be dismissed for lack of jurisdiction,” it added.

The FCC also asks that the briefing schedule on the Molaks’ petition be suspended until after the 5th Circuit has resolved the motion to dismiss, said the motion. Under the 5th Circuit’s Jan. 30 briefing letter, the Molaks’ opening brief in support of their petition is due March 11. Deciding whether the 5th Circuit has jurisdiction to consider the Molaks’ challenge before proceeding with a merits briefing, which may prove unnecessary, “will conserve judicial and government resources,” and won’t prejudice the Molaks, said the FCC.

Broadband has become an essential educational tool, “including for completing homework outside of school hours,” said the FCC's motion to dismiss. But an estimated 16 million U.S. students “lack reliable access,” it said. Many of these students spend long hours on buses traveling to and from school -- "time that could be used productively” if their buses offered internet connectivity, it said.

Counsel for the Molaks indicated they oppose the FCC’s motion to dismiss and will file a response, said the commission. Counsel for the Schools, Health & Libraries Broadband Coalition, which the 5th Circuit granted leave to intervene on the FCC’s behalf (see 2401250002), indicated that the coalition doesn’t oppose the motion, it said.