Molaks File 5th Circuit Challenge Against Latest E-Rate Wi-Fi Order

Maurine and Matthew Molak filed a petition Thursday seeking review of a July FCC order that lets schools and libraries use E-rate support for off-premises Wi-Fi hot spots and wireless internet services (see 2407180024), in the 5th U.S. Circuit Court of Appeals. The Molaks previously sought reconsideration of the July order, which three public interest groups and T-Mobile opposed last week (see 2408280029).

In addition, the Molaks have a pending appeal in the 5th Circuit asking judges to vacate the FCC’s Oct. 25 declaratory ruling that authorizes school bus Wi-Fi because it will increase the federal universal service charge they pay each month as a line-item on their phone bill to fund E-rate costs (see 2312200051). The 5th Circuit on Friday tentatively scheduled that case for oral argument the week of Nov. 4.

The July order “unlawfully expands the FCC's E-Rate Program to subsidize Wi-Fi service and equipment anywhere students might go,” the Thursday filing said: “Petitioners are aggrieved by the Report and Order because it will increase the outlays of the E-Rate Program and thereby directly increase the amount of the Federal Universal Service Charge that Petitioners pay each month as a line-item on their phone bill to fund the cost of the E-Rate Program.”

The Molaks claim “special interest” in the issue as co-founders of David’s Legacy Foundation, a non-profit dedicated to their late son “and committed to ending cyberbullying through education, legislation, and legal action.” The order “undermines that crucial mission by enabling unsupervised social-media access by children and teenagers,” the petition said.

Lawyers in the proceeding note that with few exceptions, procedural rules bar legal challenges of an FCC order while a recon petition is pending, so it’s unclear whether the appeal will be allowed at this time.

“There appears to be neither standing nor a sound legal basis for this lawsuit,” said Michael Calabrese, director of the Wireless Future Program at New America. The FCC’s hot spot lending program is “aimed at narrowing the homework gap that undermines the educational opportunities and attainment of low-income children,” he said: "Teachers cannot assume their students can access the school’s network or the internet outside of school.”

Calabrese said the Molaks should explain why they see internet access at home as a problem only when it comes to low-income students receiving an E-rate subsidy “for a connection that the FCC requires to be filtered in compliance with the Children’s Internet Protection Act.”

“The commission has ample authority to use the E-rate [program] for education purposes and that is the basis on which this case will be finally determined,” said Andrew Schwartzman, senior counselor at the Benton Institute for Broadband & Society.

“The Molaks’ appeal is unfortunate but not surprising given their previous appeal” of the school bus Wi-Fi decision, emailed John Windhausen, executive director of the Schools, Health & Libraries Broadband Coalition. The FCC decision supporting "wireless Internet for school students, staff and library patrons by building off the very successful E-rate program is consistent with the law. Millions of low-income consumers stand to benefit from this FCC decision and SHLB will continue to support the FCC‘s efforts.”

The Molaks are represented in the case by Yaakov Roth of Jones Day, who argued on behalf of plaintiffs in West Virginia v. EPA at the U.S. Supreme Court, a key administrative case where the court more fully committed to the “major questions” doctrine limiting the deference courts pay to agency decisions (see 2302080064).

The 5th Circuit is widely considered the most conservative of the federal circuits. Among its full-time judges, 12 of 17 were nominated by Republican presidents, including six Donald Trump nominees. In July, after a three-judge panel rejected a Consumers' Research challenge of the FCC's USF contribution methodology, judges voted 9-7 in an en banc decision to remand the contribution factor for Q1 2022 to the FCC for further work (see 2407260044).

The Center for American Progress has accused the 5th Circuit of paving the way for “extremist lower court judges to issue sweeping, politically fraught rulings that advance right-wing policy positions,” which often find support among conservative SCOTUS justices. “With unmoored legal theories, unprecedented procedural maneuvers, and unchecked politicization, the 5th Circuit has paved the way for a judicial power grab.”