E-Rate for School Bus Wi-Fi Based on ‘Textual Demolition’ of Section 254: Brief

The FCC's Oct. 25 declaratory ruling authorizing E-rate funding for Wi-Fi on school buses (see 2312200040) is an "unlawful exercise" of the commission's statutory authority "and may damage American students' health and diminish their educational achievement," said Michigan State University law professor Adam Candeub in a 5th U.S. Circuit Appeals Court amicus brief Friday (docket 23-60641).

Candeub, a senior fellow at the Center for Renewing America and a former attorney adviser at the FCC, supports Maurine and Matthew Molak's petition to defeat the commission's declaratory ruling (see 2404030010). Candeub also is former acting assistant commerce secretary for NTIA.

The Molaks contend the ruling will increase the amount of the federal universal service charge they pay each month as a line-item on their phone bill to fund the E-rate program. They also argue the ruling will give children and teenagers unsupervised social media access, and that this would undermine the "crucial mission" of the nonprofit they co-founded in memory of their son, David, a cyberbullied suicide victim.

The FCC's ruling expands the E-rate subsidy under the Communications Act's Section 254 from internet connections for school classrooms and libraries to Wi-Fi on school buses, said the amicus brief. It "ignores" Section 254's "text and purpose,” it added. The provision’s text requires telecom carriers that receive subsidies through the universal service fund to provide lower rates to schools and libraries for telecom services that were typically called “plain old telephone service” (POTS), it said.

Despite the statutory text’s “clear focus” on POTS, the FCC in the late 1990s successfully expanded the Section 254 subsidy to include broadband internet service and internal connections within a school “on the back of judicial deference” that the 5th Circuit afforded in its 1999 decision in Texas Office of Public Utility Counsel v. FCC, said the brief. In that decision, the 5th Circuit “made perfectly clear its disagreement with the FCC’s interpretation of Section 254,” but it ruled that under Chevron deference, “it had to affirm the FCC’s dubious expansion” of E-rate, it said.

Floating on those “vapors” of Chevron deference, the FCC “now seeks even more” -- a further expansion of E-rate “based on a total textual demolition of Section 254,” said the brief. The FCC’s ruling now interprets Section 254's language to include internet access on school buses, it said. That interpretation “should receive no deference because there is no ambiguity,” it said. Classrooms and schools aren’t buses, it said. The FCC’s basis for expanding Section 254’s subsidy to buses isn’t based on the statute’s text “but on interpreting its own orders,” it said.

Should the 5th Circuit find ambiguity in Section 254, the FCC’s ruling fails at “step 2" of Chevron deference because its interpretation is “unreasonable,” said the brief. Section 254's purpose is to promote access to educational materials in classrooms and libraries, “under the supervision of teachers and librarians,” it said.

Unsupervised Wi-Fi bus access “is more than likely to facilitate access to insalubrious material like social media, which extensive evidence shows harms children,” said the brief. The FCC’s interpretation of Section 254 doesn’t reflect “a reasoned and deliberate policy with a sound educational purpose to help students,” it said.

It’s therefore not a permissible reading of the statute that Chevron step 2 requires, said the brief. In that light, the FCC’s ruling, despite its claims to help close the so-called homework gap, “can be viewed as simply an old-fashioned, smoke-filled backroom deal to provide more government subsidies to social media platforms by giving them a new venue to push advertising and harmful content on children,” it said.