2 Different Challenges Filed to FCC's 4.9 GHz Order

The financial stakes are potentially high. Verizon CEO Hans Vestberg said in a July meeting with FCC Chairwoman Jessica Rosenworcel that AT&T gaining access to the 4.9 GHz band “would result in a substantial windfall,” with the mid-band spectrum valued at more than $14 billion (see 2407010041).

CERCI said a challenge was likely when the FCC issued the order on a 4-0 vote. Commissioner Anna Gomez recused herself. CERCI was formed last year by some public safety groups, the Edison Electric Institute, T-Mobile, UScellular, Verizon and the Competitive Carriers Association.

Prior to the U.S. Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, “CERCI had a strong argument, but a unanimous commission always had an edge,” New Street’s Blair Levin told us Wednesday. “In light of Loper, the FCC edge is gone and CERCI has a stronger chance of success,” he added. Loper overruled the Chevron doctrine, under which courts deferred to expert agencies in deciding technical issues (see 2406280043).

“It seemed like the FCC made its decision pretty rapidly, perhaps knowing the real action would take place in court anyway,” said Joe Kane, Information Technology and Innovation Foundation director-broadband and spectrum policy. But the unanimous vote “gives it a better chance since reasoned dissents can help courts find reasons to invalidate an FCC action.”

The case could present “some post-Chevron issues” with the court having to dissect the meaning of the statute rather than deferring to the commission, Kane said: “It may be a good test for the D.C. Circuit wrestling with how to operate in its legal role in a technical area like spectrum allocation.”

Said Recon Analytics’ Roger Entner, “Everyone has the right to seek recourse with the courts.” He said CERCI members may regret not participating in the competition to become the FirstNet provider.

“The Order exceeds the FCC’s statutory authority, violates the Administrative Procedure Act, and raises constitutional concerns,” CERCI said in seeking review. The order “is contrary to the statute that created FirstNet and limited it to operating only on a single, 700 MHz license” and “contrary to the Communications Act’s spectrum-assignment framework.”

The group called the order “arbitrary, capricious, an abuse of discretion, and/or otherwise contrary to law; contrary to constitutional right or power; in excess of statutory jurisdiction, authority, or limitations; and promulgated without observance of procedure required by law within the meaning of the APA.” CERCI asked the court to “hold the Order unlawful, vacate it, and remand the matter to the FCC for further proceedings.”

In an email, CERCI Chair Kenneth Corey wrote, “Our membership remains concerned that the FCC’s decision to transfer the 4.9 GHz band to the FirstNet Authority is not just unlawful but also unworkable for a variety of budgetary and technical reasons.”

PSSA sought review on aspects of the order. While the order “makes admirable progress” toward the goal of ensuring the band is “efficiently and intensely utilized in support of public safety missions,” the agency erred in part, PSSA told the D.C. Circuit.

“The FCC overlooked important aspects of the problem, alternative approaches, and other matters raised in the record that would have allowed FirstNet to gain access to the 4.9 GHz band more quickly and with more certainty -- thereby better achieving the FCC’s laudable objective,” PSSA said: “For just one example, the FCC declined to adopt Petitioners’ request that the agency eliminate all geographic-area licenses and replace them with site-by-site licenses.”