FCC Order on Further Changes to 6 GHz Rules Unlikely Before the Fall

Action on the FCC’s Further NPRM on the 6 GHz band likely has been pushed until later this year, industry and agency officials said, mainly because the U.S. Court of Appeals for the D.C. Circuit is considering a challenge to the April 2020 rules, filed by AT&T, APCO, electric utilities and other plaintiffs. The Office of Engineering and Technology is also still working through technical questions, officials said.

The FNPRM sought comment on a proposal to permit very-low-power (VLP) devices to operate across the 6 GHz band to support high data rate applications, including wearable, augmented reality and virtual reality devices. The FCC also asked for comment on increasing the power at which low-power indoor access points may operate. The OET recently forwarded to Congress a report on the implications of reallocating the band, particularly for electric utilities, FCC officials and industry officials said.

In February, acting Chairwoman Jessica Rosenworcel said the FCC is seeking “the best pathway” on further changes to 6 GHz rules, but she noted the legal challenge to the rules (see 2102170049). The D.C. Circuit hasn't scheduled oral argument, and a decision could come as late as December, lawyers said.

“OET is looking for additional technical info from the high-tech coalition on power levels for VLP, etc.,” said Michael Calabrese, director of the Wireless Future Program at New America: “Although support for completing the FNPRM and adopting robust 6 GHz rules seems to continue to be bipartisan, what’s unknown is whether the Chair will want to move forward prior to a D.C. Circuit decision.”

In a D.C. Circuit brief, posted Friday in docket 20-1190, plaintiffs said the FCC mischaracterized the choice it made in the original 6 GHz order. The FCC “rejected -- without explanation” proposals to require automated frequency coordination of all unlicensed use of the band, they said (in Pacer). “This and other failures of reasoned decisionmaking have enormous real-world consequences,” the brief argues: “Without petitioners’ proposed safeguards, some of these billion-odd devices will almost certainly disrupt some of the nation’s nearly 100,000 fixed-microwave links essential to public safety communications and critical infrastructure.”

The order is “very likely to result in harmful interference at unpredictable places and times and because, without explanation, it arbitrarily rejects readily available safeguards,” plaintiffs said.

Southern Co. supported those concerns in an amicus brief. “Southern, like other electric utilities, relies on 6 GHz microwave facilities for mission-critical wireless communications necessary for the safe and reliable delivery of electricity to homes and businesses,” the utility said (in Pacer). “Any disruption to these critical communications links could obstruct management and control of the electric grid.”

The Wi-Fi Alliance, NCTA, Apple, Google, Microsoft, Intel and other tech companies told the court the FCC made the right decision, based on engineering. Last year’s order “embodies a careful, conservative decision, based on a massive technical record, to unlock the benefits of next-generation unlicensed technologies while protecting licensed users from harmful interference,” they said (in Pacer). “It is the kind of complex, technical decision-making in an area within the agency’s expertise that warrants ‘the greatest deference’ on review.”

“NAB remains concerned with proposals to expand unlicensed operations in the 6 GHz band before stakeholders or the FCC have significant experience with real world deployments,” a spokesperson said: “We hope the FCC will seriously consider the ramifications for news coverage before expanding the already unsubstantiated rules for operation in this band.”

“On an issue with such far-reaching implications, it is critical that all sides get full consideration,” said Mark Crosby, president of the Enterprise Wireless Alliance: “Pausing on any further FCC action while the court considers the arguments is the right decision.”

“The FNPRM seemed to be on the fast track for a while, but it now seems to be on the back burner,” said Fletcher Heald’s Don Evans, who has been active in the proceeding on behalf of the Fixed Wireless Communications Coalition (see 2007300062). Much of the Utilities Technology Council’s focus has been “on the litigation and the testing issue” and not the FNPRM, a spokesperson said.

“There’s a question as to what is the comfort level of OET with the analysis that has been submitted” on additional uses of the band, said Public Knowledge Senior Vice President Harold Feld. “OET is actually fairly conservative,” he said. Other proponents and opponents of the changes called for in the FNPRM declined to comment.