5th Circuit Judges Ask About Cost of School Bus Wi-Fi Program

One sign of hope for the FCC is that judges repeatedly raised questions about the extent to which the Molaks faced real harm in having to pay a few pennies per month to support the E-rate program as part of their monthly phone bill. The Molaks brought the case because they oppose unsupervised social media access on school buses. The Molaks' son David, 16, died by suicide after he was bullied online.

David Suska of Jones Day, arguing on behalf of the Molaks, started by noting comments from the late U.S. Supreme Court Justice Antonin Scalia that the FCC was repeatedly rebuked when it attempted to expand the Communications Act beyond its text.

“Well, here we are again,” Suska said. The declaratory ruling “blows past the clear limits that Congress placed on the agency’s authority in Section 254” of the Communications Act. The act authorizes support for classrooms, but a school bus isn’t a classroom, “not as a matter of ordinary usage, statutory definitions or common sense."

The ruling is the FCC's attempt to perpetuate the COVID-19 era emergency connectivity fund, but ECF was temporary and Congress let it lapse, Suska said. “While the FCC may disagree with that choice, it is not free to disregard it or to go rifling through the statutes at large to find some other authority that it might repurpose and reimagine to do what the Congress wouldn’t allow,” he said.

Judges asked about questions raised by the government that the Molaks sued without seeking reconsideration of the order (see 2409190030). Under legal precedent, “my clients were under no obligation to ask the agency to undo what it did when it had already rejected the arguments that we’re making here,” Suska responded.

Petitioners have standing because the declaratory ruling cost them money and setting it aside will spare them those costs, Suska said.

Did it cost them money? Suska was asked. “Our claim is that this is going to cost them future injury,” he responded.

Rachel May, an FCC appellate attorney, zeroed in on whether the Molaks had exhausted available remedies before filing their case against the FCC. Petitioners don’t address SCOTUS precedent in a 2016 case, Ross v. Blake, which found that “statutory exhaustion provisions have exceptions only when Congress wants them to,” she said.

May questioned whether the Molaks’ argument that seeking reconsideration would be pointless. “They are bringing brand-new arguments that they didn’t bring” before “and it’s a little hard to accept that it would have been pointless to bring them to the agency first,” she said.

The court should also consider the minimal costs that the Molaks would incur if their appeal fails, May argued. The Molaks seem to contend that paying for their share of the entire $8 billion USF program is 66 cents per month and school bus Wi-Fi is a $19 million program, she said.

“I think your argument is that it’s so small of increase that it’s not actually increasing the bill,” said Judge Don Willett. The Molaks are contributing to the expansion of E-rate, though “it sounds like an infinitesimally small amount.”

They’re paying for the cost of the school-bus program only if “somehow that tenth of a penny makes it on to their bill,” May said.

May also noted that the ruling was constrained in its approach. “A school bus is exclusively used by the school community,” she said: “Petitioners made much of the idea that this is blowing the doors open to internet everywhere. That misrepresents the order.” The FCC found that bus Wi-Fi “and only bus Wi-Fi … satisfies that classroom test.”

The three judges hearing the case were appointed by Republican presidents: Jacques Wiener by former President George H.W. Bush, and Willett and Kyle Duncan by former President Donald Trump.