On December 28, 2021, the U.S. Court of Appeals for the D.C. Circuit affirmed the Federal Communications Commission’s (“FCC’s” or “Commission’s”) authority to permit unlicensed wireless devices, such as internet routers, smart phones, and laptops, to operate in the 6 GHz band.

In AT&T Services, Inc. v. FCC, the three-judge panel rejected 6 GHz incumbent licensees’ arguments that allowing such users to operate inside the band would cause undue interference with preexisting users, but remanded the First Report and Order (“Order”) to the FCC on one limited issue.  As a result of the Order, the Commission promises stronger and more expansive and cost-effective Wi-Fi networks for consumers and minimal effects on incumbents.

The FCC’s Order

The FCC’s November 2020 Order allocates the 6 GHz band for non-exclusive use between unlicensed wireless devices and incumbent safety-related intelligent transporting system (“ITS”) operations.  Citing consumer demand for low-cost wireless connectivity, the FCC exercised its authority under the federal Communications Act to limit existing ITS licensees to the upper 30 megahertz of the band.  In addition, the Order:

  • Establishes a one-year timeline for incumbent licensees to transition into the upper 30 megahertz and cease operations in the lower portion of the band;
  • Permits immediate low power level unlicensed indoor operations in the lower 45 megahertz of the band;
  • Allows requests for unlicensed outdoor operations on a non-interference basis in the lower 45 megahertz of the band;
  • Requires unlicensed full power operations to use an automated frequency coordination (“AFC”) system that prevents harmful interference with licensed devices; and
  • Requires all ITS operations use the same technology to transmit safety communications.

A variety of challengers, including AT&T and the National Association of Broadcasters (“NAB”), argued that opening the 6 GHz band to unlicensed devices without additional protections would interfere with incumbent operations and violates both the Communications Act and Administrative Procedure Act.  The group requested that the Order be vacated and for the FCC to add more protections for incumbents.

The D.C. Circuit Decision

The D.C. Circuit rejected all but one of the Petitioners’ challenges and affirmed the FCC’s expert authority to permit unlicensed use in the 6 GHz band.  The Court noted Petitioners “mischaracterized” the Commission’s goal, as it was required only to eliminate substantial, but not all, harmful interference.  As the Court pointed out, the Order repeatedly states that the Commission will make the potential risk for harmful interference “insignificant,” not non-existent, consistent with FCC regulations.  Even if harmful interference does occur, incumbents may petition the FCC for relief.  While Petitioners argued these enforcement mechanisms occur too late to effectively prevent interference, the Court found the Commission demonstrated adequate monitoring and detection tools in accordance with its regulatory obligations.

Petitioners also attacked the studies relied on by the Commission in the Order, arguing that the agency did not publish supporting data for certain studies and relied on flawed and inapplicable ones as well.  The Court found not only that the Commission provided sufficient support for the studies, but that the cited studies were consistent with the Commission’s goal to eliminate significant interference.

Petitioners also challenged the FCC’s requirement for low-power indoor access points, arguing that the maximum power limit was arbitrarily chosen and did not protect from or discourage unexpected outdoor use.  The Court dismissed this argument, finding that the Commission’s power limit ensures that consumers will have to stay close to indoor access points for continued use, thus preventing any potential outdoor interference.  The D.C. Circuit also rejected Petitioners’ complaints that the FCC declined to establish a maximum activity factory for unlicensed users and devices.  As the Commission explained, and the Court agreed, such activity limits would interrupt unlicensed users’ continuous transmissions.

The Court did, however, agree with NAB’s argument that the FCC failed to respond to its request that the Commission reserve a portion of the 6 GHz band exclusively for mobile licensees.  The NAB’s comments noted that contention-based protocols, like the lower-power access points required by the Order, failed to provide adequate protection for incumbent users in other bands.  The Court declined to vacate this portion of the Order, but remanded for the Commission to respond to the NAB’s concerns.

Communications providers operating in the 6 GHz band are currently weighing in on proposals for the AFC and should be on the lookout for further guidance from the FCC as the transition to the upper portion of the band and increased unlicensed use begin.