Carr-Led FCC Drops Procedural Challenge in School Bus Wi-Fi Case
The FCC said Friday that it no longer contends that Maurine and Matthew Molak of Texas are barred from challenging the FCC’s declaratory ruling authorizing E-rate funding for Wi-Fi on school buses (see 2312200040) based on their lack of participation in the FCC proceeding that led to the action. The FCC filed a notice at the 5th U.S. Circuit Appeals Court, which heard oral argument on the case Nov. 4 (see 2411040061).
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The order was approved in a 3-2 vote by the FCC in October 2023 and hasn’t been overturned by the current FCC, which consists of two Democrats and two Republicans. Democratic Commissioners Anna Gomez and Geoffrey Starks didn’t comment Friday. Now-Chairman Brendan Carr and Republican Commissioner Nathan Simington dissented at the time.
In September, the FCC objected to the Molaks' challenge (see 2409190030) since they “did not submit comments to the agency regarding school bus Wi-Fi, file a petition for agency reconsideration, or otherwise participate” in the proceeding.
“We wish to inform the Court that ... the Commission no longer defends the position that the Molaks’ challenge to the Declaratory Ruling is barred by either prong of Section 405(a)” of the Communications Act, which governs petitions for reconsideration, said the Friday filing: “We make no representation as to the position of the United States.”
The filing noted that since the FCC and the U.S. government made their argument, the agency is under new leadership. “As explained in the Molaks’ briefing -- and by their counsel at oral argument -- many people urged the Commission not to adopt the Declaratory Ruling because it exceeds the agency’s statutory authority.”
The filing noted objections to the declaratory ruling that Carr raised. “We believe that the Commission had a fair opportunity to pass on the questions presented by the Molaks’ claim that the Declaratory Ruling exceeded the Commission’s statutory authority, and a petition for reconsideration was not required to raise those arguments for this Court’s consideration.”
The FCC “continues to adhere … to its previously expressed position that Article III and the Hobbs Act preclude review of the Molaks’ claims,” the filing said. But if the court “concludes that it has subject-matter jurisdiction under Article III, and that judicial review is available under the Hobbs Act, it is the Commission’s view that the Court should reach the merits of the Molaks’ statutory challenges to the Declaratory Ruling.”