Litigants Disagree on Implications of SCOTUS Decision for School Bus Wi-Fi Case
Litigants disagreed on whether the U.S. Supreme Court’s recent decision in Nuclear Regulatory Commission v. Texas precludes the challenge to an FCC order that lets schools and libraries use E-rate support for off-premises Wi-Fi hot spots and wireless internet services. The U.S. government and attorneys representing Maurine and Matthew Molak filed briefs last week at the 5th U.S. Circuit Appeals Court (case 23-60641), which asked for their perspectives (see 2506180067). The government said the FCC may reverse the order regardless of what the court does.
Sign up for a free preview to unlock the rest of this article
Communications Daily is required reading for senior executives at top telecom corporations, law firms, lobbying organizations, associations and government agencies (including the FCC). Join them today!
The FCC approved the order 3-2 in 2023 during the Biden administration (see 2312200040). A 5th Circuit panel heard oral argument in November (see 2411040061).
In the SCOTUS case, the justices rejected a challenge that Texas and a group of landowners brought against the Nuclear Regulatory Commission's approval of a private company's plan to temporarily store thousands of metric tons of nuclear waste at a facility in the state. Justice Brett Kavanaugh wrote in a 6-3 decision that neither Texas nor a land developer were parties to the commission's licensing proceeding, and they aren't entitled to obtain judicial review. Conservative Justices Neil Gorsuch, Clarence Thomas and Samuel Alito dissented.
Based on that ruling, “petitioners are not ‘parties’ entitled to judicial review of the Order because they did not participate in the underlying FCC proceedings,” the government said in its 5th Circuit brief. “Unlike other interested parties, … Petitioners did not file comments or make any other submissions during the Commission’s consideration of E-Rate support for schools and libraries. Nor did they petition the agency for reconsideration of the Order even after it was released.” Petitioners suggest “they might qualify as parties because they submitted a filing in a subsequent proceeding,” the government said.
The NRC case made clear the limits of “ultra vires” review, something done beyond one's legal power or authority, the government said. “Like the petitioners in NRC v. Texas, Petitioners here ‘basically dress up a typical statutory-authority argument as an ultra vires claim,’” the brief said. Also, as in the NRC case, petitioners here “could have first presented their views to the agency by filing comments … as a ‘party’ to the relevant FCC proceedings” and “sought review of the resulting Order in accordance with the Hobbs Act.”
But the government brief also noted that the composition of the FCC has changed since the agency adopted the school bus Wi-Fi ruling in 2023. Commissioner Brendan Carr, who dissented, is now chairman, two of the commissioners who voted to approve the ruling have left, and Republican Olivia Trusty has joined. “The newly constituted Commission is reevaluating the agency’s past actions, including the Order under review,” the brief said.
The Molaks disputed the government’s arguments concerning the SCOTUS decision. “NRC is a narrow decision that does not undermine jurisdiction here,” they argued. “As the opinion makes clear, the outcome turned on (a) the adjudicatory nature of the licensing proceeding and (b) the specific pathways to achieving party status specified by the Atomic Energy Act. This case involves a very different proceeding and statute.”
The NRC case “does not speak to what qualifies someone as a ‘party’ to this type of unusually informal rulemaking,” the appellants argued. The FCC issued the order “as part of a general rulemaking docket. And while the agency published a draft on its website shortly before issuing the final version, it did not follow notice-and-comment procedures -- let alone afford anyone a hearing.”