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‘Soon Sunsetting’

School Bus Wi-Fi Ruling ‘Rests on Shaky Legal Ground,’ Says Molaks’ Opposition

The challenged FCC declaratory ruling authorizing E-rate funding for Wi-Fi on school buses “defies unambiguous statutory limits on the FCC’s authority,” said Maurine and Matthew Molak's opposition Friday (docket 23-60641) to the FCC’s Feb. 6 motion to dismiss their petition for review in which the Molaks ask the 5th U.S. Circuit Court of Appeals to vacate that ruling (see 2402070002).

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The Communications Act empowers the FCC to make rules to enhance the access of classrooms and libraries to telecommunication services, said the opposition. Instead, the declaratory ruling subsidizes Wi-Fi on school buses, said the opposition. “Simply put, a school bus is neither a classroom nor a library -- even when retrofitted with a hotspot,” it said.

The FCC knows the declaratory ruling “rests on shaky legal ground,” the opposition continued. For more than a decade, the agency “consistently disclaimed authority” to subsidize services beyond the “schoolhouse gate,” it said. The agency changed its mind only recently, “in an attempt to evade the imminent expiration of a COVID-era statutory authorization that expressly permitted off-campus support but that is soon sunsetting,” it said.

In light of that backdrop, it’s not a surprise the FCC hopes it can “avoid judicial review altogether,” said the opposition. But circuit precedent “squarely forecloses its arguments in support of dismissal,” it added. As the 5th Circuit has repeatedly and recently held, petitioners who claim that an agency exceeded the scope of its authority may invoke the Hobbs Act regardless of whether they participated in the agency proceedings, it said.

The Molaks filed their petition for review to challenge the declaratory ruling as "contrary to law," said the opposition. The ruling will increase the outlays of the E-rate program and therefore the amount of federal universal service charges on their monthly phone bill, it said.

But the Molaks' interest "goes beyond their pocketbook injury," said the opposition. Their son, David, took his life eight years ago, at 16, after he became the victim of cyberbullying, it said. Soon after his death, the Molaks started David's Legacy Foundation, and dedicated it to eliminating cyberbullying through education, legislation and legal action, said the opposition. The Molaks believe the declaratory ruling "undermines this critical mission by enabling unsupervised social-media access" on school buses, it said.

The 5th Circuit should deny the FCC’s motion to dismiss “outright,” the opposition argued. “At minimum,” the court “should carry the motion with the case,” to allow the Molaks “to develop their arguments against the FCC’s statutory authority” to issue the declaratory ruling, it said.