Key FCC Wi-Fi Order Faces Challenges, Expected to Survive
The FCC’s 6 GHz order faces a potential court fight and petitions for reconsideration, but Wi-Fi advocates and others said it should easily survive the challenges. Commissioners approved allocating 1,200 MHz for sharing with Wi-Fi and other unlicensed use in the 6 GHz band 5-0 in April, after extensive technical analysis by FCC engineers (see 2004230059). The regulator is unlikely to make extensive changes based on the recon petitions, and appellate courts usually give the agency’s technical expertise wide sway, industry observers said.
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APCO was the first to seek changes in May (see 2005280047). Electric utilities asked for a stay until a court challenge can be considered. AT&T and the Edison Electric Institute in June went to the U.S. Court of Appeals for the District of Columbia Circuit. CTIA, Verizon and the Fixed Wireless Communications Coalition sought FCC changes to the order (see 2006260066), as did Encina Communications.
“The FWCC agrees with the recon petitioners and the court petitioners who believe the rules as currently adopted will certainly cause interference to licensed fixed service stations, many of which deliver absolutely critical data services to utilities and public safety entities,” said Fletcher Heald’s Donald Evans, lawyer for the group. “The FCC seems to be more dazzled by the prospects of futuristic gadgets than ensuring the reliability of the nation’s basic data transfer infrastructure,” Evans told us: “Our petition pointed to some readily fixable parts of the FCC’s order, and we hope the FCC will do the responsible thing. Ultimately, it may take the court to fix the deeper issues.”
“The 6 GHz band is big enough to host both licensed and unlicensed services,” emailed Scott Bergmann, CTIA senior vice president-regulatory affairs. “The rest of the world is bringing hundreds of MHz of licensed mid-band spectrum to market for 5G applications, and there is broad agreement that more wireless mid-band spectrum is essential to securing our global leadership in the emerging 5G economy.”
Others said the FCC is on firm ground. "The commission’s decision is based on a comprehensive, multiyear proceeding, in which all interested parties, including the petitioners, created a robust record,” said Alex Roytblat, Wi-Fi Alliance senior director-regulatory affairs. “It is truly regrettable that the petitioners choose to rehash stale arguments void of any additional facts.” Roytblat is optimistic “all 6 GHz spectrum users will work constructively on expanding wireless connectivity at a time when it is needed most and ensuring that incumbent operations are protected from harmful interference.”
No one believes the agency will stay the order, said Harold Feld, Public Knowledge senior vice president: “It is simply a necessary preliminary before going to court.” Feld doesn’t give challenges much chance: “When an expert agency makes a highly technical decision, deference to the agency is at its zenith. The only time the D.C. Circuit reverses this sort of spectrum decision is when the FCC messes up procedurally, which wasn't the case here. ... The FCC looked at the contrary studies and explained why they didn't regard them as persuasive.” EEI alleges its study wasn’t considered, Feld said. “But the FCC said at the beginning of the order it found EEI's study fundamentally flawed because it didn't take into account attenuation due to things like walls and made too many other unwarranted assumptions.”
“Courts rarely presume to overrule the FCC’s technical expertise if the agency provides a reasoned analysis based on the record, which it clearly does here,” said Michael Calabrese, director of the Wireless Future Program at New America. The FCC order “explains why it found a series of technical studies by CableLabs to be more persuasive than what it called flawed studies by incumbents,” Calabrese said: “Overall, this record has more studies, simulations and engineering analyses from a wider variety of parties than I have seen in any proceeding over the past decade.”
The order will “make a massive difference for spectrum-strapped rural broadband providers,” said Wireless ISP Association President Claude Aiken. He said commissioners “unanimously agreed on a spectrum regime based on carefully calibrated engineering considerations that will certainly hold up in court.”