Carr: Court Will Overturn FCC's Latest Wi-Fi Order

FCC commissioners approved 3-2 a draft order and Further NPRM at their Thursday open meeting that lets schools and libraries use E-rate support for off-premises Wi-Fi hot spots and wireless internet services. The FCC Republicans issued dissents as expected (see 2407170035). In a lengthy dissent, Commissioner Brendan Carr questioned whether the order would survive a legal challenge.

Providing federal funding for off-premises Wi-Fi following the expiration of the emergency connectivity fund is a question for Congress, not federal regulators, Carr argued. “Congress has made clear that the FCC’s authority to fund this initiative is over, except that’s not how the FCC sees it today.”

Carr cited the U.S. Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo, which overturned the Chevron doctrine and its 40 years of legal precedent (see 2406280043). The commissioner made similar points during a Multicultural Media, Telecom and Internet Council webinar Wednesday (see 2407170056).

Carr also cited an amicus brief filed by Senate Commerce Committee ranking member Ted Cruz (Texas) and six other Republican senators urging the 5th U.S. Circuit Appeals Court to reverse an FCC ruling authorizing E-rate funding for Wi-Fi on school buses (see 2404100002).

"The FCC can no longer" after Loper Bright "point to a merely permissible construction of a statute to prevail in court,” Carr said: “Instead, courts will now determine the best reading of the relevant law.” Providing libraries and schools with Wi-Fi spots may be a good idea, but Congress has not authorized it, he said.

The draft order cites Sections 254(c)(1), (c)(3), (h)(1)(B), and (h)(2) of the Communications Act as justification, saying they “collectively grant the Commission broad and flexible authority to establish rules governing the equipment and services that will be supported for eligible schools and libraries, as well as to design the specific mechanisms of support.” The act recognizes that to advance its Universal Service Fund objectives, “the types of services supported by the various support mechanisms are constantly evolving in light of ‘advances in telecommunications and information technologies and services,’” the draft said.

Chairwoman Jessica Rosenworcel said the order was needed to make up for the loss of funding from the now shuttered ECF.

“Today we have a choice,” Rosenworcel said: We can return to a time when people “sat in parking lots to get a signal to get online and students struggling with the homework gap hung around fast food places just to get the internet access they needed to do their schoolwork. Or we can go forward and build a digital future that works for everyone.”

Republican Commissioner Nathan Simington raised concerns that the order will mean children can access the internet without parental supervision. Aside from that concern, “we simply lack the authority to take the action we take today,” he said. “The heady days of Chevron are behind us.”

“Instruction, homework, group projects, extra assignments and more all happen outside of the physical school grounds, and often outside of official school hours,” Commissioner Geoffrey Starks said. Starks noted the order includes safeguards “to limit the risk of waste, fraud, and abuse, and incentivizes E-rate recipients to use their limited funds judiciously.”

In a post-COVID-19 world, “academic learning is not constrained to the four walls of a physical classroom,” Commissioner Anna Gomez said. “No student should fall behind academically because they lack connectivity to do their schoolwork.”

On Wednesday, Rosenworcel was in Malden, Massachusetts, with Sen. Ed Markey, D-Mass., for a public discussion of how school libraries are already deploying Wi-Fi hot spots, said a filing by Rosenworcel’s office in docket 21-31. “Participants praised the E-Rate program for delivering connectivity to schools and libraries, yet noted that it must adapt to meet the modern needs of communities,” the filing said.

“The FCC Order properly finds that section 254 [of the Telecom Act] provides the Commission with specific authority to designate additional services for financial support,” said Kristen Corra, policy counsel at the Schools, Health & Libraries Broadband Coalition.

The order is “a landmark, commonsense step that is necessary to tackle the critical homework gap and get students the connectivity they need to learn,” a T-Mobile spokesperson said in an email. It’s “complementary” to T-Mobile’s Project 10Million program “focused on solving these same issues.”

“We need all available tools to bridge digital divides and libraries will leverage this program to make an impact in their local communities,” Megan Janicki, deputy director-strategic initiatives, at the American Library Association, emailed. The order is “an important first step, and ALA will continue to advocate for cost-effective and technology neutral solutions that build on lessons learned from library lending programs.”

The FCC “rightly takes action to ensure that the opportunity to learn is not confined to a physical location,” said Alisa Valentin, Public Knowledge director-broadband policy.