Fifth Circuit Lawsuit Filed by Concerned Parents Aims to Strike Down FCC’s Unlawful Decision to Fund Wi-Fi on School Buses 

WASHINGTON, D.C. – U.S. Senate Commerce Committee Ranking Member Ted Cruz (R-Texas) led his colleagues in filing an amicus brief opposing the Biden administration’s recent decision to expand the Federal Communication Commission’s (FCC) E-Rate program to fund Wi-Fi on school buses. The Fifth Circuit lawsuit, Molak v. FCC, was brought by parents concerned about the federal government subsidizing children’s unsupervised access to social media sites, like TikTok and Instagram, on bus rides to and from school.

“Addictive and distracting social media apps are wreaking havoc on our kids,” said Sen. Cruz. “The FCC’s decision to fund children’s unsupervised access to social media on bus rides to and from school is both dangerous and unlawful. I’m glad to support other concerned parents in opposing this reckless rule, and I thank my colleagues for joining me in our effort to keep kids safe.”

In the amicus brief, the senators argue the FCC’s decision to expand the E-Rate program beyond schools and libraries exceeds the agency’s statutory authority and unlawfully extends a lapsed COVID-era program—the Emergency Connectivity Fund—that Congress did not renew. The brief also argues the FCC’s ruling will harm children by enabling their unsupervised access to the internet.

Joining Ranking Member Cruz in submitting the amicus brief are Sens. Marsha Blackburn (R-Tenn.), Mike Braun (R-Ind.), Ted Budd (R-N.C.), James Lankford (R-Okla.), Cynthia Lummis (R-Wyo.), and Pete Ricketts (R-Neb.).

To read the amicus brief, CLICK HERE.

Background

• Established to subsidize broadband connectivity in schools and libraries throughout the country, E-Rate is one of four programs under FCC’s Universal Service Fund (USF), which is funded through taxes on consumers’ phone bills.?   
• On June 26, 2023, FCC Chairwoman Jessica Rosenworcel launched an initiative to expand the E-Rate program to install Wi-Fi hotspots off campus, including on school buses and in students’ and library patrons’ homes.
• In July and September, Sen. Cruz and House Energy and Commerce Committee Chairwoman Cathy McMorris Rodgers urged the FCC to reject Chairwoman Rosenworcel’s plan to expand the E-rate program beyond school classrooms and libraries, arguing that the plan exceeds the FCC’s statutory authority.
• Last October, the FCC voted on a party-line basis to finalize the rule. This expansion of E-Rate is clearly unlawful: section 254 of the Communications Act explicitly confines the FCC’s E-Rate authority to “classrooms” and does not authorize the agency to fund off-premises use.
• By expanding E-Rate subsidies to school buses, the agency is attempting to extend a separate, temporary COVID-era program—the Emergency Connectivity Fund, established by the American Rescue Plan Act—which the FCC cannot do without specific congressional direction.

• In response to the FCC’s ruling, Matthew and Maurine Molak filed a petition for review in the U.S. Court of Appeals for the Fifth Circuit. Mr. and Mrs. Molak are the founders of David’s Legacy Foundation, a non-profit dedicated to kids’ online safety and advocacy against cyberbullying. 

• Sen. Cruz has introduced bipartisan legislation to limit children's access to social media at school by requiring schools receiving E-Rate funding to prohibit access on subsidized services, devices, and networks. While existing law requires schools collecting E-Rate subsidies to certify that software is in place blocking or filtering access to obscenity, child pornography, and other harmful sexual content, there is currently no provision requiring schools to block access to distracting and addictive social media apps or websites.

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