4.9 GHz Licensees Seek Delay of June 9 Data Deadline
The Government Wireless Technology & Communications Association (GWTCA) and state groups asked the FCC to delay a requirement that current 4.9 GHz licensees provide it with granular licensing data not later than June 9, or face cancellation of their licenses. Proponents of the delay were optimistic on Monday that the FCC would approve the stay.
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The motion for partial stay asks the regulator to delay the requirement pending appeal of an October order giving the FirstNet Authority, and indirectly AT&T, use of the 4.9 GHz band (see 2410220027). The filing was posted on Monday in docket 07-100 and was also signed by the state departments of transportation in Utah and Washington and the Utah 911 authority.
The Coalition for Emergency Response and Critical Infrastructure (CERCI) is challenging the October order, while the Public Safety Spectrum Alliance (PSSA) is protesting aspects of it, in petitions for review in the U.S. Court of Appeals for the D.C. Circuit (see 2412040043).
The FCC laid out the requirements for data filings in a recent public notice (see 2412090070).
Alan Tilles, lawyer for the parties seeking a stay, emailed, “We’re optimistic that the commission will see our request as entirely reasonable to protect the status quo during the appeal process, while still permitting the commission to continue its preparation for implementation of the new rules, with absolutely no downside for anyone.”
Licensees face “pretty Draconian” consequences if they fail to file on time, said a second lawyer active in the proceeding. The implications for licensees are more severe than some recognized when the FCC issued the order, the lawyer said: “Incumbents are starting to feel the impact of this order, and it’s happening in real time and there are real consequences. … It’s happening faster than a lot of people expected.”
The filing said, “In this particular case, it is extremely difficult to demonstrate the likelihood of success on the merits of the appeal,” noting that the U.S. Supreme Court recently overturned the longstanding Chevron doctrine in Loper Bright Enterprises v. Raimondi. Under that doctrine, courts generally defer to expert agencies in deciding technical issues (see 2406280043).
Pursuant to Loper, “the Court of Appeals has greater latitude than before to issue a decision at odds with the Commission’s findings,” the filing said: “Coupled with the Commission’s own complete change of direction from the Seventh Report & Order (allocating a 4.9 GHz geographic license to each state) to the Eighth Report & Order (allocating a nationwide 4.9 GHz geographic license through lease to FirstNet), means that the likelihood of some level of alteration by the Court of Appeals is higher than may ordinarily be the case.”
Experts said when CERSI and PSSA filed their appeals, the case could be an early test of the level of discretion the FCC will receive from the courts in a post-Chevron world.
The filing notes that the parties have a strong stake in the proceeding. Washington is the second-largest user of the 4.9 GHz band for public safety in the U.S., after California, and Utah has active government licensees in the band covering the entire state.
The Enterprise Wireless Alliance and the Forestry Conservation Communications Association, meanwhile, warned the FCC in a second filing that the deadline poses challenges. Both are frequency advisory committees certified by the FCC to provide frequency coordination “and related support” for private land-mobile radio licensees and applicants. The groups “are working with 4.9 GHz incumbents to gather the data required by the FCC now that the specific information for the site-based applications has been detailed in the Public Notice,” they said: “Incumbents and the radio dealers that support them are working diligently to meet the … deadline, but it is apparent that the task is formidable for some larger operations and more time may be required.”