Circuit Court Upholds FCC in Releasing 1,200 Megahertz of 6 GHz Spectrum for Wi-Fi, Other 5G Innovations

By Don Bishop

December 29, 2021

The U.S. Court of Appeals for the District of Columbia Circuit ruled in favor of the FCC against a challenge by AT&T Services and others that wanted the court to reverse an FCC order to open the 6 GHz frequency band for next-generation Wi-Fi access, allowing the operation of unlicensed devices. The court found that the petitioners, which included commercial communications service providers, electric utilities and the membership organization APCO, failed to demonstrate that the FCC “relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the [Commission], or is so implausible that it could not be ascribed to a difference in view or the product of [Commission] expertise.”

The failure on the part of the petitioners, the court said, is especially significant because in issuing is order, the Commission was acting to “foster[] innovative methods of exploiting the spectrum,” thus requiring the court’s greatest deference.

“We therefore deny their petitions for review,” the court’s opinion reads. “But for the reasons set forth above, we grant the National Association of Broadcasters’ petition in part and remand for further proceedings consistent with this opinion.”

Broadcast interests want the FCC to protect from interference a sliver of 6 GHz frequencies they use for electronic newsgathering for electronic newsgathering.

FCC Chairwoman Jessica Rosenworcel welcomed the D.C. Circuit Court’s unanimous ruling upholding the FCC’s decision to free up the 6 GHz band for next-generation Wi-Fi:

“Today’s decision is an important step in clearing the way for next-generation Wi-Fi access at a time when it is needed most,” she said. “ In this pandemic, so much of modern life has migrated online. 6 GHz Wi-Fi will help us address this challenge by offering more access in more places, faster speeds and better performance from our Wi-Fi networks. It will also help us in our mission to connect everyone, everywhere. That’s good for consumers, for broadband deployment, and for the nation’s wireless economy.”

The chairwoman said she thanked the professionals in the FCC’s Office of General Counsel for their defense of the FCC’s work in the proceeding, along with the Office of Engineering and Technology and the Wireless Telecommunications Bureau for their work in addressing the complex technical issues presented in the record.

“It is encouraging to read the court’s strong approval of this work,” Rosenworcel said, “and we look forward to addressing on remand the narrow issue that the court identified.”

FCC Commissioner Brendan Carr said that the FCC order increases the amount of mid-band spectrum for Wi-Fi and 5G innovations by a factor of five.

“The agency decision was part of the prior FCC’s unprecedented push to free up spectrum — the oxygen needed to power 5G,” Carr said. “All told, those efforts opened up more than six gigahertz of spectrum for licensed 5G services in addition to thousands of megahertz for unlicensed or Wi-Fi operations. The FCC’s bold spectrum actions fueled America’s 5G leadership. It is critical that this FCC match the pace and cadence of those decisions. That is why I put forward a spectrum calendar at the beginning of this year.”

Carr said that the circuit court opinion also underscores the FCC’s role as the nation’s lead spectrum regulator. He said it does so by affirming the FCC’s assessment of the risks of harmful interference to existing operations. He said that U.S. leadership in wireless depends on stakeholders continuing to abide by Congress’s long-standing decision to place these determinations squarely within the FCC’s expertise.

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Don Bishop is executive editor and associate publisher of AGL Magazine.