Molaks Defend Legal Challenge to FCC's Wi-Fi Hot Spots Order

Lawyers for Maurine and Matthew Molak slammed an FCC pleading asking the 5th U.S. Circuit Appeals Court to reject the couple’s challenge seeking review of a commission order from July that lets schools and libraries use E-rate support for off-premises Wi-Fi hot spots and wireless internet services (see 2408300027). The FCC said the challenge wasn’t ripe because the commission had yet to address a petition by the Molaks seeking reconsideration of the order (see 2409130063).

The July order would “effectively turn school-aged children into walking and talking Wi-Fi hotspots,” the pleading said. The Molaks have a second pending challenge against last year’s declaratory ruling clarifying that the use of Wi-Fi on school buses is an educational purpose and eligible for E-rate funding (see 2409190030).

Appellants argued in a pleading filed Friday in docket 24-60446 that the FCC’s approach was “Kafka-esqe.” They note that the FCC argued in the school bus case that filing a reconsideration petition was a necessary first step before seeking judicial review.

“According to the FCC, the Molaks must wait for the agency to rule on their request for reconsideration before filing a fresh petition for review in this Court -- and the agency can give no sense of how long that might take, or whether it will ever act on the reconsideration request at all,” they argue: Meanwhile, “the FCC is presumably starting to implement the Hotspots Ruling on schedule, unbothered by the Molaks’ objection and unburdened by the express statutory limits on its authority.” The court should see the FCC’s pleading “for what it is: yet another attempt to evade judicial review of an unlawful expansion of E-Rate.”

The Molaks cast their challenge as based on concerns about unsupervised access of students to social media. Their son David died by suicide at 16 after he was cyberbullied. The Texas couple have since founded an anti-bullying group called David's Legacy Foundation.

The Molaks “object to the Hotspots Ruling for the reasons they object to the School Bus Ruling -- it is unlawful, wasteful, and harmful to children and teenagers,” the pleading said: “It also plainly exceeds the FCC’s statutory authority to enhance connectivity for ‘classrooms.’”

Appellants argue that the FCC reads incorrectly the laws governing appeals of agency actions. “Nothing in the statute books even hints at the possibility that a petition for reconsideration deprives the circuit courts of jurisdiction over cases like this one or converts final, reviewable orders into nonfinal, unreviewable orders,” they said. The court “should deny the motion to dismiss, or at least carry the motion with the case and hold the case in abeyance pending the FCC’s timely consideration of the petition for reconsideration.”

Many rate the 5th Circuit as the most conservative of the federal circuits and Republican presidents nominated 12 of its 17 full-time judges, including six by Donald Trump (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, a landmark case that expanded the authority of courts to review decisions by federal agencies (see 2302080064).