School Bus Wi-Fi Ruling ‘Improperly Expands’ FCC’s Section 254 Authority, Says Brief

The FCC's Oct. 25 declaratory ruling authorizing E-rate funding for Wi-Fi on school buses (see 2312200040) is “contrary to law” because it “improperly expands” the schools and libraries universal service program under Section 254 of the Communications Act, said the Competitive Enterprise Institute in an amicus brief April 9 (docket 23-60641) at the 5th U.S. Circuit Court of Appeals.

The brief supports Maurine and Matthew Molak's petition to defeat the declaratory ruling (see 2404030010). The 5th Circuit deemed the brief sufficient on Friday.

That ruling is an FCC exercise of congressional power under Article I, Section 8 of the Constitution, said the brief. There’s a strong argument that this delegation to the commission is unconstitutional, though that’s not the focus of the brief, it said.

Relief for the Molaks on statutory grounds is possible because the FCC hasn’t established a “statutory basis” for its ruling, said the brief. The commission asserts that its authority for the ruling is subsection (h)(1)(B) of Section 254, it said. It further contends that the ruling is “independently permitted” by subsection (h)(2)(A) of Section 254, it said. But the reality is that “neither subsection” supports the ruling, it said.

When Congress wishes to create a subsidy for Wi-Fi on school buses, “it has the ability to say so,” as it did with the American Rescue Plan Act (ARPA), said the brief. That statute instructed the FCC to promulgate rules for the provision of Wi-Fi beyond classrooms and libraries, it said.

The COVID-19 emergency period under the ARPA is due to expire June 30, and with it the ARPA’s authorization of rules for the provision of telecommunication services at locations other than the school, said the brief. In expiring, this authorization “does not bequeath its authority to an earlier statute,” it said. The FCC’s ruling doesn’t find that school buses are schools or parts of schools, it said: “On the contrary, it acknowledges that they are not.”

There’s also no finding in the ruling that telecommunication carriers “would provide telecommunications services to elementary or secondary schools or libraries through the provision of Wi-Fi or other similar technologies on school buses,” said the brief. In the absence of such a finding, the ruling doesn’t establish “the eligibility of the provision of Wi-Fi or other similar technologies on school buses” for E-rate funding, it said. Consequently, the 5th Circuit should “reverse and remand” the ruling to the FCC, it said.