FCC Challenges Molaks' Standing for E-Rate Review

The FCC urged that the 5th U.S. Circuit Appeals Court reject Maurine and Matthew Molak's challenge of the commission’s October declaratory ruling clarifying that the use of Wi-Fi on school buses is an educational purpose and eligible for E-rate funding (see 2408300027). In a brief Wednesday, the agency argued the Molaks lack standing to bring the challenge and the agency acted within the law when it addressed school bus Wi-Fi.

The Molaks said that the 5th Circuit should vacate the ruling because it will increase the federal universal service charge they pay each month as a line-item on their phone bill (see 2406260006). Moreover, they oppose unsupervised social media access on school buses. The Molaks' son David, 16, was a suicide victim after he was cyberbullied.

“Without having participated in the proceedings before the agency, petitioners now argue that the Ruling is outside the Commission’s statutory authority,” the FCC told the court (docket 23-60641): “Petitioners did not submit comments to the agency regarding school bus Wi-Fi, file a petition for agency reconsideration, or otherwise participate.”

The Molaks’ absence from the proceeding “requires dismissal under the Hobbs Act because neither petitioner is a ‘party aggrieved’ entitled to judicial review of the Ruling,” the agency said.

Moreover, the Molaks haven’t demonstrated “an actual or imminent injury-in-fact,” the FCC said: “They have offered no evidence demonstrating that E-Rate support for school bus Wi-Fi will imminently increase their monthly universal service fee.” The FCC noted that applications for E-rate support for bus Wi-Fi in funding year 2024 totaled approximately $19 million. That amount is “far less than 1 percent of the total demand for universal service programs.”

The FCC also argued that it was justified in making the ruling, noting that at least 16 million students lack internet service at home and require a broadband connection to complete homework assignments. Many students, especially in rural areas, “travel long distances to and from school.”

The ruling “fits squarely within” FCC authority, under the Telecom Act “to support the provision of communications services, including broadband, to schools and libraries for educational purposes,” the brief said. The commission noted that the act “does not define ‘classrooms,’ and that ‘recent history has shown that in today’s world, teaching and learning often occur outside of brick and mortar school buildings and thus ‘classroom’ may be interpreted more broadly.”

The Molaks established David’s Legacy Foundation, which targets cyberbullying. Because they live in Texas, the Molaks can challenge the FCC ruling in the 5th Circuit, considered the most conservative of federal circuits. They also filed a challenge there to a July FCC order that allows schools and libraries to use E-rate support for off-premises Wi-Fi hot spots and wireless internet service (see 2408300027).

The Molaks are represented in both cases by Yaakov Roth of Jones Day, who argued on behalf of plaintiffs in West Virginia v. EPA at the U.S. Supreme Court. In that case, SCOTUS more fully committed to the major questions doctrine limiting the deference courts pay to agency decisions (see 2302080064). Oral argument is tentatively slated for the week of Nov. 4.