FCC Struggling as It Addresses Increasingly Controversial 4.9 GHz Band

Opponents of giving the FirstNet Authority effective control of the 4.9 GHz band, as promoted by AT&T and the Public Safety Spectrum Alliance (PSSA), have been at the FCC repeatedly in recent weeks, driven in part by rumors that Chairwoman Jessica Rosenworcel may support that plan. But industry officials say how the FCC will come down remains uncertain. With Commissioner Anna Gomez expected to recuse herself, because of work before she joined the commission, Rosenworcel will likely need support from at least one Republican commissioner.

FCC commissioners approved an order in January 2023 establishing a national band manager for the 4.9 GHz band, along with a Further NPRM asking for feedback on details of how coordination would work (see 2301180062). The FCC has yet to finalize procedures.

“It does feel like it’s gaining momentum,” Jeff Johnson, CEO of the Western Fire Chiefs Association and a PSSA supporter, said of a 4.9 GHz order. “I am optimistic that it will be resolved by fall.”

AT&T CEO John Stankey and Verizon CEO Hans Vestberg have visited the commission, promoting opposite sides of the issue. Vestberg recently met with Rosenworcel and opposed the PSSA proposal (see 2407010041). This month, Stankey met with Republicans Brendan Carr and Nathan Simington in support of it. That level of outreach is unusual in an FCC proceeding.

Last month, representatives of the Coalition for Emergency Response and Critical Infrastructure (CERCI) met with staff from the FCC Office of General Counsel. They questioned whether the FCC could legally give the FirstNet Authority (FNA) control of the band. “The legal merits of the PSSA’s plan are not a close call: The Commission clearly lacks authority to assign the 4.9 GHz band to FNA, and FNA clearly lacks authority to receive it,” CERCI said in a filing in docket 07-100.

Industry officials note that CERCI brought in two experienced appellate attorneys, Jessica Amunson and Elizabeth Deutsch, both of Jenner Block, as part of the meeting. T-Mobile and Verizon, as well as public interest and utility groups, have funded CERCI.

The level of controversy “has slowed things down,” said Harold Feld, senior vice president at Public Knowledge, which is filed in opposition to the PSSA proposal. “A few weeks ago it felt like a decision was very close,” Feld said: “Then we had CEOs lobbying and lots of folks coming in which, I think, had given staff and the chair new perspectives to consider.”

Michael Calabrese, director of the Wireless Future Program at New America and an opponent of the PSSA proposal, said, “Adopting anything like FirstNet’s proposal to make this an exclusive mobile band incorporated into AT&T network would, at a minimum, require another further notice of rulemaking since it would effectively reverse” the 2023 order. The FCC’s order “is premised on making the band available for a wide variety of local public safety use cases and for non-public safety use as well.”

Rosenworcel favors giving FirstNet control of the 4.9 GHz band, “but there is a lot of political opposition,” and the FCC doesn’t want to lose another case in court, a lawyer who doesn't support either side's position said. Other observers note that when Rosenworcel worked for the Senate, she was an aide to former Commerce Chairman Jay Rockefeller, D-W.Va., a top, early supporter of FirstNet.

At a House Communications Subcommittee hearing last month (see 2407090049), Rep. Kat Cammack, R-Fla., asked Rosenworcel about the band's future and whether it would be auctioned or “reallocated to FirstNet.”

“We have an open docket on that” and “we’re taking in comment from all kinds of public safety authorities right now,” Rosenworcel responded. The question is which public safety authorities will manage the band, not whether it will be auctioned or given to FirstNet, she added. “My hope is that we can do this within the next several months, but … lots of people are filing a lot of stuff before us and when it comes at us fast and furious we have to spend some time looking at it and reading it carefully."

Lobbying continues on both sides, illustrative of the divide even among local governments and public safety groups. In a filing posted Tuesday in docket 07-100, California’s San Bernardino County Fire Protection District said FirstNet should have access to the spectrum. The FNA “has proven it can effectively manage and deploy the public safety spectrum, as evidenced by the successful nationwide deployment of Band 14 across” the U.S., the fire district said. St. Louis called the PSSA proposal “problematic” and supported local control of the frequencies.

In a filing posted Tuesday, CERCI pointed to AT&T’s February national wireless outage, which affected FirstNet (see 2407220034), and recent AT&T data leaks as evidence the PSSA proposal should be rejected. “AT&T and the PSSA would have the FCC concentrate public safety communications even further in the AT&T network exacerbating the vulnerabilities that reliance on AT&T has created for public safety,” CERCI said.