7 GOP Senators Urge 5th Circuit to ‘Vacate’ FCC’s School Bus Wi-Fi Ruling

The 5th U.S. Circuit Appeals Court should reverse the FCC's ruling authorizing E-rate funding for Wi-Fi on school buses (see 2312200040) by interpreting the Communications Act “in accordance with its ordinary meaning,” Senate Commerce Committee ranking member Ted Cruz (Texas) and six other Republican senators wrote in an amicus brief Tuesday (docket 23-60641). The brief supports Maurine and Matthew Molak's petition to defeat the Oct. 25 declaratory ruling (see 2404030010).

Section 254 of the Communications Act authorizes the FCC to facilitate expansion of internet access to school classrooms and libraries, the Republican senators said in the brief. But whether the FCC should make Wi-Fi available to unsupervised children on school buses, and with what safeguards, “is a fiercely debated legislative question,” it said. The other signers: Sens. Marsha Blackburn (Tenn.), Mike Braun (Ind.), Ted Budd (N.C.), James Lankford (Okla.), Cynthia Lummis (Wyo.) and Pete Ricketts (Neb).

While Congress expanded internet access beyond classrooms and school libraries with funds during the COVID-19 pandemic, “that program sunsets on June 30,” said the brief. “Once limitations are set by Congress, they must be followed -- not thwarted -- by the federal regulators charged with their enforcement,” it said.

The FCC’s declaratory ruling authorizing Wi-Fi on school buses was an “attempt to circumvent” Section 254's “clear text,” said the brief. The 5th Circuit should “vacate the policy decision at the heart of the FCC’s unlawful action,” it said. Moreover, the agency’s plan that subsidizes Wi-Fi on school buses is “misguided,” it said. School buses are neither classrooms nor libraries within the meaning of Section 254, it said. That makes the decision to fund Wi-Fi on school buses “contrary to law,” it added.

The FCC’s proposed expansion of E-rate funding for school bus Wi-Fi “raises concerns about child safety and a lack of accountability regarding federal spending,” said the brief. The plan would funnel millions of dollars “to expired COVID-era policies without any evidence that unsupervised teenagers with smartphones on school buses will opt for trigonometry over TikTok,” it said. In addition, the Molaks argue that having students with unsupervised access to social media on school buses would undermine the mission of the nonprofit they established in memory of their son, who died by suicide after being cyberbullied.

The agency hasn’t performed analyses, produced survey data, “or even required an accounting to determine whether the money already spent on equipping school buses with Wi-Fi has resulted in more students completing their school assignments or otherwise served the academic purposes for which the COVID-era funding was intended,” said the brief. Rather than conduct a careful analysis based on public comment of the efficacy of funding school bus Wi-Fi, the FCC’s E-rate program “greenlights children’s unsupervised internet access while failing to address the well-documented and corrosive effects on minors of social media, online pornography, and cyber bullying,” it said.

The FCC’s proposal “is unsupported by evidence that the existing program works,” said the brief. It also lacks “appropriate guidelines” to ensure that the E-rate funds advance the interests of children, parents, teachers, and taxpayers, it added. The 5th Circuit “should put a stop to the FCC’s attempt to circumvent Congress and its prerogative in placing limits” on the E-rate program, it said.