Section 254 Doesn’t Authorize Wi-Fi on School Buses: Opponents’ Brief

Petitioners Maurine and Matthew Molak contend the ruling will increase the amount of the federal universal service charge they pay each month as a line-item on their phone bill to fund the E-rate program. Moreover, they argue the ruling will give children and teenagers unsupervised social media access. This would undermine the “crucial mission” of the nonprofit they co-founded in memory of their son David, a cyberbullied suicide victim.

The Molaks challenge the declaratory ruling as exceeding the scope of the FCC's authority and believe the agency considered and rejected the legal arguments underlying the petition for review, said their brief. Section 254 of the Communications Act directs the FCC to make rules enhancing access that classrooms and libraries have to telecommunications and information services, it said. The FCC for decades has relied on that provision to administer “sprawling” subsidy programs, including E-rate, it said.

“Things changed” with the declaratory ruling, when the FCC decided to expand E-rate to “subsidize the provision of Wi-Fi hotspots” on school buses, said the brief. The FCC acknowledged that this “broke from past practice,” the brief argues. Wi-Fi on school buses “is plainly off-campus service,” said the brief.

But the commission “forged ahead anyway,” reasoning that the decision serves an educational purpose and that an expanded E-rate program could substitute for the soon-to-expire emergency connectivity fund (ECF), said the brief. That COVID-relief program “expressly permits off-campus support” but has a June 30 “statutory sunset date,” it said.

Only when faced with the ECF’s impending expiration did the FCC “suddenly discover in Section 254 the power to provide off-campus support” for school bus Wi-Fi, said the brief. The decision was akin to “pouring new wine from old bottles,” it said.

Section 254 can’t be read “to authorize subsidies for Wi-Fi on school buses,” it said. The FCC asserts that classrooms can encompass school buses, but that contention is “risible,” which is probably why the agency buries it in a footnote, “even though it is the textual ground on which the entire order rests,” it said.

Nor can it suffice to say that the FCC is authorized to do whatever serves an educational purpose, said the brief. “That confuses the statute’s purpose with its reach,” and it “impermissibly reduces” classrooms and libraries to “surplusage,” it said.

The FCC’s other stated rationale for the declaratory ruling, that it’s a substitute for the ECF, “only confirms its illegality,” said the brief. The agency “evidently thinks Congress erred in putting an expiration date on ECF and its off-campus support,” it said. But federal courts “have seen this story before,” it said. Past arguments “for repurposing old statutes to perpetuate COVID-era policies have not fared well,” it said. The 5th Circuit should grant the Molaks’ petition for review and set aside the declaratory ruling “as contrary to law,” the brief said.

The 5th Circuit on Wednesday granted the FCC's request for a 30-day deadline extension, through June 3, to respond to the Molaks’ opening brief. The commission’s unopposed letter motion Tuesday said good cause exists for the extension. The case involves “a complex statutory scheme and important jurisdictional and merits issues,” it said. In addition, the FCC understands several amicus briefs are likely, “which may raise points meriting a response,” it said.