DC Circuit Upholds FCC's Order Allocating 6 GHz Band for Wi-Fi

The FCC and Wi-Fi advocates notched a win in the U.S. Court of Appeals for the D.C. Circuit Tuesday, which upheld the agency’s April 2020 order reallocating the 6 GHz band for unlicensed use. The court remanded part of the order for more explanation. Judge Justin Walker, a new member of the court, had warned the order could be remanded or even vacated, and the FCC faced tough questions during oral argument in September (see 2109170057).

APCO, utilities, AT&T, broadcasters and other 6 GHz incumbents challenged the order because of concerns of potential harmful interference in the band. Only broadcasters got anything from the court.

The court denies “the petitions for review in all respects save one,” said the decision by Judge David Tatel, for the three-judge panel. “The exception relates to the petition brought by licensed radio and television broadcasters using the 6 GHz band. Because the Commission failed adequately to respond to their request that it reserve a sliver of that band exclusively for mobile licensees, we remand to the Commission for further explanation on that point,” Tatel wrote.

The decision makes clear the FCC’s authority to allocate spectrum for Wi-Fi even in the face of potential interference. Two lawyers involved in the case said it goes further on that point than any previous decision. “All petitioners argue that the Commission has understated the risk of harmful interference,” the court said. “Petitioners mischaracterize the Commission’s goal,” it said: “It never claimed that the Order would reduce the risk of harmful interference to zero. To the contrary, the Commission repeatedly explained that the Order makes the ‘potential for harmful interference to incumbent services operating in the 6 GHz band ... insignificant.’ … The Commission acknowledged that it had to ‘balance unlicensed device access and incumbent protection.’” The third judge hearing the case was Patricia Millett.

The decision “underscores the FCC’s role as the nation’s lead spectrum regulator,” said Commissioner Brendan Carr. “It does so by once again affirming the FCC’s assessment of the risks of harmful interference to existing operations,” he said: “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.”

NAB is pleased the court “agreed with broadcasters that the Commission failed to adequately address whether a small part of the 6 GHz spectrum should be reserved for licensed mobile uses,” a spokesperson emailed: “We look forward to working with the Commission to ensure radio and television broadcasters can continue to cover breaking news, sports, and other events without undue risk of interference from unlicensed devices.” The Utilities Technology Council is still reviewing the decision, a spokesperson said. Other appellants didn’t comment.

The court instructed the FCC to respond to NAB arguments about interference problems in the 2.4 GHz band as a result of Wi-Fi. “Although the Commission cited a study to support its conclusion that the Order sufficiently protects mobile operators, that study does not rebut the Association’s claims about interference in the 2.4 GHz band,” the court said.

“Having listened to the oral arguments, which are rarely predictive of a court's final outcome, I think the commission should be quite pleased,” former Commissioner Mike O’Rielly told us. “The narrow remand for explanation, and reaffirmation on most points, means that the wonders of unlicensed services I pushed so hard for can flourish in 6 GHz and the commission can move forward soon on the other open aspects,” like very-low-power operations, he said.

“This decision = more Wi-Fi in more places and it matters because it comes at a time when being connected is more important than ever,” tweeted FCC Chairwoman Jessica Rosenworcel.

“In 2020, the @FCC freed up the 6 GHz band -- a 5x boost in mid-band unlicensed spectrum -- to give consumers better #WiFi,” tweeted Ajit Pai, chairman when the order was approved: “Today, the D.C. Circuit rejected challenges to this move and vindicated our efforts -- unanimously! Big victory for innovation and consumers.”

The remand was narrower than some had expected, said Michael Calabrese, director of the Wireless Future Program at New America. The decision is “a starting gun for completing the rulemaking so that consumers can fully benefit from this historic expansion of unlicensed spectrum,” he said: “The commission’s remaining challenge is to increase the indoor power levels to allow whole-home Wi-Fi and to authorize the very-low-power peripheral devices that will make this band fully functional for [augmented and virtual reality] and other innovation.”

“The Court’s decision … while seeking further explanation of one narrow issue, is a victory for consumers, businesses, and the U.S. economy,” NCTA said: “We hope and expect that the Commission will promptly clarify the single limited issue on remand.” The FCC’s decision was “smart, well-researched, unanimous and bipartisan,” WifiForward said.

“The court explicitly denied the NAB’s request to vacate the Order or otherwise interfere with Wi-Fi 6e equipment certification and deployment,” Public Knowledge said: “We are confident the FCC can address this remaining argument easily, and that the public will continue to benefit from expanded Wi-Fi use in the 6 GHz band.”