DC Circuit Sides with FCC in Broadband Licensing Appeal

According to an opinion issued on Tuesday, decisions made by the Federal Communications Commission (FCC) associated with its opening of the 6 gigahertz (GHz) band of radio frequency spectrum to unlicensed devices were by and large well-reasoned. Challenges brought by petitioners AT&T Services Inc. and others, the court said, did not pose legitimate bases for questioning the agency’s decision.

Commercial communications providers AT&T Services and Lumen Technologies, electric utilities, the Association of Public-Safety Communications Officials International (APCO), and the National Association of Broadcasters filed the petition with the D.C. Circuit after the FCC issued an order in April 2020, opening the 6 GHz band to unlicensed devices including routers and the devices they connect to, such as smartphones, laptops, and tablets.

The order required that such unlicensed devices “be designed and operated to prevent harmful interference with licensees now using the 6 GHz band, i.e., commercial communications providers, electric utilities, public safety services, and network broadcasters.” Concerned that the order did not do enough to prevent harmful interference, and emphasizing that current uses of the band involve public safety and critical infrastructure, the petitioners sought judicial intervention.

The court considered arguments that the decision contravenes both the Communications Act of 1934 and the Administrative Procedure Act in an administrative law analysis. It ruled that the petitioners had no basis for arguing that the FCC failed to disclose underlying data, writing that “the Commission disclosed all data in its possession.”

The petitioners also faulted various aspects of an FCC-directed study, partly by comparing it to an AT&T-conducted study. The court found these arguments unavailing, particularly criticism of the study’s discount of a worse-case scenario interference, finding that the FCC’s study was consistent with well-accepted statistical and informational parameters.

The court granted one petitioner’s request for review and directed the FCC to respond to concerns about interference in the 2.4 GHz band. The court found it significant that though the National Association of Broadcasters’ comments raised such concerns, the FCC failed to meaningfully respond. As such, the court vacated that part of the order and remanded to the FCC for further explanation.

AT&T is represented by Sidley Austin LLP and the FCC by its own counsel.