Molaks' Reply Brief: Section 254 Doesn't Authorize Wi-Fi on School Buses

The FCC, intervenors and amici who benefit from E-rate funding contend that authorizing Wi-Fi on school buses will advance students’ education, but there’s “powerful and growing evidence to doubt that claim,” petitioners Maurine and Matthew Molak said in their 5th U.S. Circuit Appeals Court reply brief Monday (docket 23-60641).

The Molaks argue that the 5th Circuit should vacate the FCC’s Oct. 25 declaratory ruling that authorizes school bus Wi-Fi because it will increase the federal universal service charge they pay each month as a line-item on their phone bill to fund E-rate costs (see 2312200051). They also oppose unsupervised social media access on school buses that children and teenagers will have. A son of the Molaks died by suicide at 16 after he was cyberbullied.

“All that matters here” is that Congress authorized the FCC to enhance internet access only for classrooms under Section 254 of the Communications Act, the Molaks said in their reply brief. Section 254 didn’t authorize Wi-Fi in private homes, coffee shops or school buses, “even though students could do homework in any of those places.” If remote-learning and digital education advocates “want to keep federal funds flowing" beyond the COVID-19 pandemic, they will need to persuade Congress, it said.

Unable to argue “with a straight face” that a school bus is a classroom, the FCC now tries to defend its declaratory ruling under Section 254(h)(1)(B), which pledges support for schools generally, the reply brief said. But the FCC’s “pivot” raises a different problem, it added.

Subsection (h)(1)(B) authorizes subsidies for telecommunications carriers providing telecommunications services, the reply brief said. Yet E-rate “subsidizes non-telecommunications carriers for non-telecommunications services and equipment,” such as the Wi-Fi networking equipment at issue here, it added. That’s why, more than 25 years ago, the FCC and the 5th Circuit recognized that Section 254(h)(1)(B) alone can’t authorize “the full scope” of E-rate, it said. Section 254(h)(2)(A) provides the “necessary gapfilling authority,” it said: “The same is true today. This pivot therefore leads to a dead end.”

That leaves the FCC “wriggling desperately to avoid judicial review.” The FCC’s objection to the Molaks’ Article III standing “is halfhearted and contrary to precedent.” Repeating its motion to dismiss arguments “does not make them any stronger.”