Opponents of FCC's 4.9 GHz Order Clash With PSSA at DC Circuit
Groups opposed to the order giving the FirstNet Authority, and indirectly AT&T, control of the 4.9 GHz band through a nationwide license (see 2410220027) and the Public Safety Spectrum Alliance (PSSA), which had only a few quibbles with the order, clashed in briefs filed this week at the U.S. Court of Appeals for the D.C. Circuit. Oral argument has yet to be scheduled in the case (docket 24-1363). The FCC approved the order during the last administration with support from current Chairman Brendan Carr (see 2411130027).
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The order's net effect is to “unlawfully and irrationally take spectrum from state and local public-safety licensees in the 4.9 GHz band and provide it” to the FirstNet Authority “operated by its commercial partner, AT&T,” said a brief by the Coalition for Emergency Response and Critical Infrastructure (CERCI) and other groups. CERCI represents Verizon, T-Mobile and other interests that have opposed FirstNet control of the band.
The commission may not “override Congress’s statutory scheme with an unprecedented workaround in which the Commission grants an overlay license to a sham Band Manager to pass-through spectrum to FirstNet and AT&T,” said the brief, which also included the National Sheriffs’ Association, California State Sheriffs’ Association and San Francisco Bay Area Rapid Transit District.
The order wasn’t based on “reasoned decisionmaking,” the groups said. “It fails to account for incumbents’ reliance interests in their prior, flexible geographic licenses, and requires them to obtain new licenses that are concededly narrower in geographic scope and frequency.”
In addition, they argued that the FCC acted beyond its legal authority in assigning the spectrum to FirstNet, which Congress created as part of the Middle Class Tax Relief and Job Creation Act of 2012.
“FirstNet is a creature of statute,” the brief said. “The Commission entirely ignores the numerous Spectrum Act provisions clearly limiting FirstNet’s operations only to the 700 MHz band. … The Commission attempts to locate its new and capacious authority to expand FirstNet in various words and phrases plucked out of context from the Spectrum Act.”
The PSSA continued to counter CERCI's arguments (see 2508220016) but defended its challenge of certain parts of the order. “The record is clear that requiring licensees to relinquish unused spectrum would benefit first responders by making more spectrum available to the band manager for the overlay license, and, thus, to FirstNet,” the group said. “The FCC therefore acted unreasonably in deferring a decision on what to do with unused spectrum.”
The FCC also fell short in failing to address PSSA’s proposal to replace geographic licenses with site-based licenses, the alliance said. “In response, the FCC cites discrete snippets of the Order, but the portions of the Order it invokes do not address PSSA’s proposal,” its brief said. “The Commission’s failure to explain its inaction was arbitrary and capricious.”