Foes and Supporters of FirstNet's Control of 4.9 GHz Band Exchange Blows at DC Circuit

Briefs were posted last week in docket 24-1363. The court has yet to schedule oral argument.

CERCI and its allies allege that the order “violates the major questions doctrine, violates limits on FirstNet’s statutory authority and the Commission’s own regulations, and is arbitrary and capricious,” PSSA and FOP said. “CERCI is wrong in all respects.” The order authorizes the assignment of a nationwide overlay license to the 4.9 GHz band manager, allows FirstNet to share the spectrum and reissues incumbent licenses consistent with their use of the band, the groups said. “These actions fit comfortably within the Commission’s broad statutory authority to regulate spectrum.”

The order is “the culmination of the Commission’s lengthy, record-based evaluation of the 4.9 GHz band’s gross underutilization, and appropriately considers all reliance interests,” PSSA and FOP said. It builds on “a series of orders that took incremental steps toward a new paradigm for the band.” CERCI is wrong in its arguments that the band manager framework violates the Communications Act by issuing a license to a federal entity, the groups said. “No federal entity will receive a license, and allowing federal entities to share spectrum is not the same as issuing them a license.”

The brief argued that, contrary to CERCI’s claims, the FCC didn’t violate the U.S. Supreme Court’s evolving “major questions” doctrine in issuing the order. “Congress’s initial grant of spectrum to FirstNet does not mean that only Congress may approve any subsequent use of spectrum by FirstNet." The potential market value of the 4.9 GHz spectrum doesn’t provide a basis for invoking the doctrine, the brief added. “Otherwise, virtually all spectrum-related decisions would be ‘major questions.’” In its 2022 decision in West Virginia v. EPA (see 2206300066), SCOTUS laid out the basis for the largely underdeveloped major questions doctrine, clamping down on agencies' ability to regulate on significant issues without clear direction from Congress.

CERCI, joined by the San Francisco Bay Area Rapid Transit District (BART), fired back. The 4.9 GHz order exceeds the commission’s and FirstNet’s statutory authority and is “arbitrary and capricious because it fails to account for incumbents’ reliance interests and the resulting consequences for public safety.” The order also doesn’t “adequately consider data regarding incumbent usage that the Order requires be collected” and “fails to address serious concerns about FirstNet.” It’s not arbitrary and capricious for the two reasons claimed by PSSA, the brief said.

“PSSA incorrectly argues that the Commission failed to address its proposal to replace incumbents’ geographic licenses with site-based licenses,” said the CERCI-led brief. But the FCC did “largely direct the replacement of incumbents’ prior geographic licenses with site-based licenses.” The need for the agency to retain some geographic licenses “is readily apparent and adequately explained.”

PSSA also “incorrectly argues” that the commission should have required incumbents to immediately surrender all unused spectrum, CERCI said. The FCC “explained that it chose to defer consideration of surrender until it reviewed the data incumbents submit about their usage. PSSA itself repeatedly recognizes that this data would ‘of course’ bear on the agency’s determination of how best to proceed, and further acknowledges that an agency need not regulate everything all at once.”

The government defended the order in an Aug. 14 brief. Usage of the 4.9 GHz band “continues to be sparse,” it said. “The number of licensees has stalled at fewer than 4,000, and the band has seen minimal innovation over the years in terms of available applications.” The band’s “persistent underutilization results in large part from its character as shared spectrum.” The government said the order came “after over a decade of failed efforts to spur usage.”