School Bus Wi-Fi Foes Don't Qualify for Section 405(a) Review, Says FCC Reply

Petitioners Maurine and Matthew Molak want the 5th U.S. Circuit Court of Appeals to “disregard the statutory requirement” under Communications Act Section 405(a) that persons who weren’t parties before the FCC file a petition for reconsideration as a “condition precedent” to seeking judicial review, said the FCC and DOJ reply Friday (docket 23-60641) in support of their motion to dismiss the Molaks’ petition (see 2402070002).

The agencies turned around their reply roughly 24 hours after the 5th Circuit denied their unopposed motion for a six-day extension (see 2402160006). The 5th Circuit granted the FCC's motion to suspend briefing on the Molaks' petition, pending its decision on the motion to dismiss.

The Molaks’ petition seeks to vacate the FCC’s Oct. 25 declaratory ruling authorizing E-rate program funding for Wi-Fi on school buses. 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 Wi-Fi on school buses enables unsupervised children and teenagers to access social media.

The Molaks’ “invitation to create a judicial exception” to the statute’s plain text is “at odds” with U.S. Supreme Court 2016 precedent in Ross v. Blake, said the reply. Because the Molaks failed to meet “one of the conditions to judicial review” set forth in Section 405(a), the 5th Circuit should dismiss their petition, it said.

Though the 5th Circuit need not reach the issue to dismiss the petition under Section 405(a), the court lacks subject-matter jurisdiction under the Hobbs Act, said the reply. Because neither of the Molaks is a party aggrieved, “they fall outside the scope of the Hobbs Act’s jurisdictional grant,” it said.

The Molaks are mistaken that the 5th Circuit’s "ultra vires exception" to the party aggrieved requirement allows the court to “assert jurisdiction,” said the reply. Their “expansive interpretation” of that exception “would cover many, if not most, challenges to agency action,” it said. That’s contrary to the 5th Circuit’s previous recognition that the exception applies only in rare instances, it said.

Section 405(a) contains “no equitable exceptions,” so the Molaks’ contention that it was unrealistic for ordinary citizens to participate in the FCC’s administrative proceedings is “irrelevant,” and it’s “also wrong,” said the brief. Though the Molaks appear to suggest that the FCC would have dismissed a petition for reconsideration if they had filed one, the court can’t adopt a “futility exception,” it said.

The Molaks “may consider it pointless” to require a party to engage with the agency before seeking judicial review, but the text of Section 405(a), like the analogous party aggrieved requirement in the Hobbs Act, shows that Congress “sees it otherwise,” said the brief. Congress chose to make participation in the agency proceeding, including by filing a petition for reconsideration, a condition precedent to review, it said. The Molaks’ failure to satisfy that requirement thus precludes 5th Circuit review of their petition, it said.