FCC and FirstNet Proponents: D.C. Circuit Should Not Stay 4.9 GHz Order
The FCC and two groups that support FirstNet asked the U.S. Court of Appeals for the D.C. Circuit not to stay the FCC’s order giving use of the 4.9 GHz band to the FirstNet Authority, and indirectly AT&T. The briefs were filed in response to the request for a stay by the Bay Area Rapid Transit District (BART), the National Sheriffs' Association and the California State Sheriffs' Association.
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The D.C. Circuit has yet to schedule oral argument in the case. BART and the sheriffs associations have also asked the FCC to stay the order (see 2501290032). The FCC approved the latest order revising the rules for the 4.9 GHz band in October (see 2410220027).
The FCC told the court it couldn’t “foster greater use of the band without a comprehensive understanding of where current licensees operate and the technical parameters (such as specific frequencies, power levels, and antenna heights) of the facilities they have deployed.” That’s why it asked current licensees to update the commission about their operations by June 9, said a brief filed at the court Friday in docket 24-1363. “Such data would be little help, though, if it were constantly in flux,” which is why the agency froze the band, the brief said.
BART and the sheriffs groups claim the order was arbitrary and capricious, "their only theory here” on what is “nothing more than a policy disagreement,” the FCC said. The groups “take issue with the Commission’s decision to stabilize the spectrum band while it moves to a new licensing scheme,” the agency said: “A disagreement about how the Commission should weigh competing interests” doesn’t “mean that the agency’s decision was arbitrary and capricious.”
The Public Safety Spectrum Alliance (PSSA) and Public Safety Broadband Technology Association (PSBTA) also asked the court not to stay the order.
The 4.9 GHz band “is grossly underutilized, limiting public safety entities’ ability to take advantage of the superior propagation characteristics of this spectrum and to deploy advanced life-saving communications technologies,” the groups said. “A stay would halt the process of making the 4.9 GHz band a focal point for advanced public-safety communications, thereby harming first responders and the general public.”
PSSA and PSBTA disputed arguments that the October order was arbitrary and capricious.
Arbitrary-and-capricious review is "a ‘deferential standard’ that ‘presume[s] the validity of agency action,’” the brief said. It's not a court’s role "to second guess the FCC’s policy judgment, so long as it comports with established standards of administrative practice.” Incumbent licensees also “had ample notice that the Commission was considering such a change,” the brief said.
The FCC didn’t “cancel existing licenses wholesale” but instead “required incumbent licensees to complete the data collection obligations imposed on them … by June 9,” the brief said. Geographic licenses don’t “instantly disappear on that date,” but once data is collected “incumbent licensees’ current … licenses will be cancelled once the incumbents apply for and are” given new licenses, the brief said. The FCC's record “amply supports replacing the existing geographic licenses with new, usage-based licenses that will allow the 4.9 GHz band to be used more efficiently.”
PSSA and PSBTA said BART and the sheriffs groups threw the “proverbial kitchen sink at the Order, raising a host of meritless policy disagreements” with the commission’s determinations in the order. “Putting aside the baselessness of these assertions, these kinds of policy disputes have no relevance to arbitrary-and-capricious review,” the brief said: “Rather, the question is whether the Order is ‘reasonable and reasonably explained.’”