FCC prevails in 6 GHz court challenge led by AT&T

The U.S. Court of Appeals for the District of Columbia Circuit ruled in favor of the Federal Communications Commission (FCC) in its decision to designate a large swath of the 6 GHz band to unlicensed users, including Wi-Fi. AT&T had challenged the FCC’s decision, saying it posed potential interference with existing fixed microwave users.

“Petitioners have failed to provide a basis for questioning the Commission’s conclusion that the Order will protect against a significant risk of harmful interference,” the court wrote, in part, in its December 28 decision. “We therefore deny the petitions for review in all respects save one.”

The exception relates to the petition brought by licensed radio and television broadcasters using the 6 GHz band. Because the commission failed to respond to their request that it reserve a sliver of that band exclusively for mobile licensees, the court wants the FCC to provide further explanation on that point – one that backers of the FCC think they can easily address.

In 2020, the FCC voted to free up 1,200 megahertz of spectrum in the 6 GHz band for unlicensed uses. Today, FCC Chairwoman Jessica Rosenworcel issued a statement welcoming the D.C. Circuit Court’s unanimous ruling that mostly upheld that move. 

“Today’s decision is an important step in clearing the way for next generation Wi-Fi access at a time when it is needed most.  In this pandemic so much of modern life has migrated online.  6 GHz Wi-Fi will help us address this challenge by offering more access in more places, faster speeds, and better performance from our Wi-Fi networks. It will also help us in our mission to connect everyone, everywhere. That’s good for consumers, for broadband deployment, and for the nation’s wireless economy,” Rosenworcel said.

FCC Commissioner Brendan Carr said the court’s decision underscores the FCC’s role as the nation’s lead spectrum regulator. He didn’t mention it, but the FCC’s role in spectrum management is part of the fight with aviation and C-band.

“Today’s opinion also underscores the FCC’s role as the nation’s lead spectrum regulator. It does so by once again affirming the FCC’s assessment of the risks of harmful interference to existing operations. 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,” Carr stated.

WifiForward, a group that represents Google, Microsoft, Amazon, Comcast, Charter Communications, Arris, Broadcom, Boingo, WISPA and others, said it was pleased with the D.C. Circuit Court’s decision.

“The Commission’s decision was smart, well-researched, unanimous and bipartisan,” WifiForward stated. “We look forward to consumers getting faster, lower latency Wi-Fi operations in the band, which will include Wi-Fi 6E and eventually next-generation Wi-Fi 7.”

Public Knowledge (PK) had filed an amicus brief in support of the FCC, explaining the importance of gigabit Wi-Fi to the public and the successful history of the FCC expanding unlicensed spectrum access.

Opening the 6 GHz band for unlicensed use enables the deployment of next-generation Wi-Fi, called Wi-Fi 6e, as well as other important services necessary for deploying 5G, PK noted.

“Everyone should recognize the importance of working Wi-Fi in our lives after two years of COVID-19,” said PK SVP Harold Feld in a statement. “The FCC’s 2020 Order opening the 6 GHz band made much-needed new unlicensed spectrum available for telemedicine; streaming for education, work or entertainment; and thousands of other uses.”

Because the FCC failed to address an argument raised by the National Association of Broadcasters (NAB), the court remanded the decision to the FCC to address this one outstanding argument, Feld added, saying PK is confident the FCC can address this one remaining argument easily and that the public will continue to benefit from expanded Wi-Fi use in the 6 GHz band.

Michael Calabrese, director, Wireless Future Project at New America, said the court’s decision is a “starting gun” for completing the rulemaking so that consumers can fully benefit from the historic expansion of unlicensed spectrum. “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 AR, VR and other innovation,” Calabrese said.