Molaks Urge Fifth Circuit Not to Dismiss E-Rate Hotspot Case
The FCC moved to throw out the case, involving cyberbullying, earlier this month.
Jake Neenan
WASHINGTON, Sept. 24, 2024 – The Federal Communications Commission asked federal judges to dismiss a legal challenge to its expansion of a broadband subsidy for schools. The Texas couple fighting the rule on Monday urged the court to let it stand.
The agency moved in July to allow its E-Rate program, which provides internet discounts for schools and libraries, to fund Wi-Fi hotspots for students to check out and use off campus. Maurine and Matthew Molak sued to block the order in August, arguing the agency lacked legal authority to put E-Rate funds toward any off-campus connectivity.
The Molaks run an anti-cyberbullying nonprofit dedicated to their son, who died by suicide after being bullied online. They have taken legal action against multiple FCC attempts to expand E-Rate, believing the moves would result in more unsupervised social media access.
The couple had also filed a petition for review with the agency itself after the July order, which the FCC said was grounds to throw out the court case.
“[I]t is well settled that ‘a motion to reconsider renders the underlying order
nonfinal’ as to the party that sought reconsideration,” the agency wrote in a September 13 motion to dismiss. “[O]nce the Commission takes final action on petitioners’ pending petition for reconsideration, they will have the opportunity, if they so desire, to seek judicial review of the agency’s final order at that time.”
The Molaks countered Monday, arguing the agency was trying to delay the case. They said judges should deny the FCC’s motion, or put the court case on pause until their agency-level petition is resolved.
“According to the FCC, the Molaks must wait for the agency to rule on their request for reconsideration before filing a fresh petition for review in this Court—and the agency can give no sense of how long that might take, or whether it will ever act on the reconsideration request at all,” their lawyer wrote. “This Court should see the FCC’s motion to dismiss for what it is: yet another attempt to evade judicial review of an unlawful expansion of E-Rate.”
In a separate case before the Fifth Circuit, the couple are challenging another E-Rate order from late last year, which allows funds to be used for Wi-Fi on school buses. Oral arguments are tentatively slated for the week of November 4.
E-Rate spends about $2 billion per year. It’s part of the FCC’s Universal Service Fund, funded by fees on interstate voice revenue. The Fifth Circuit broke from precedent and ruled that scheme unconstitutional over the summer, but put the decision on hold while the agency appeals to the Supreme Court. It’s planning to file by next Monday, Sept. 30.
