FCC Awaits DC Circuit Ruling Before Other 6 GHz Decisions
The FCC is unlikely to finalize pending orders on broader use of the 6 GHz band until after the U.S. Court of Appeals for the D.C. Circuit rules on a challenge to the 2020 order opening the band, experts told us. The FCC wrapped up a comment cycle on a Further NPRM in July 2020 (see 2007280033). This year, the agency sought comment on whether to allow client-to-client operations in the spectrum (see 2103240065). Chairwoman Jessica Rosenworcel has said only that the commission is working on the item.
The FCC faced tough questions when the D.C. Circuit heard a case alleging the agency never explained why it didn’t require use of automated frequency control (AFC) to protect incumbents from low-power indoor (LPI) use (see 2109170057). More recently, the Utilities Technology Council, Edison Electric Institute, APCO and others asked the FCC to stop certifying LPI devices and rewrite the rules for the band (see 2112080058).
The FCC is unlikely to act until a court decision, said Public Knowledge Senior Vice President Harold Feld. The court appears likely to remand the order for further work rather than overturning it, he said. “When you have spectrum cases that hinge on interference potential, in those rare cases when the court reverses, they usually … tell the FCC to clarify why it did what it did rather than vacating.” The commission is likely to wait until a third Democrat joins, Feld said. Nominee Gigi Sohn faces Senate resistance (see 2112150069). The FCC didn’t comment Tuesday.
“We are in a holding pattern on 6 GHz for the time being,” said Kristian Stout, International Center for Law & Economics director-innovation policy. “The FCC is still in a good spot legally,” said Digital Progress Institute President Joel Thayer. “Even so, the current chair has been very cautious, and I don’t think she’s going to address much as it relates to other issues within the 6 GHz docket until the court renders a decision.”
“Courts give the FCC tremendous deference in technical matters like the 6 GHz dispute,” but the order was “controversial and complex, and the D.C. circuit judges were concerned with portions of it,” emailed Brent Skorup of George Mason University’s Mercatus Center. If the FCC loses, it should be able to adjust in a few months, he said: “The order opened a huge band of spectrum to new consumer devices and the FCC is eager to see the band used. Mandated spectrum sharing is always contentious but the agency and Congress could avoid many future headaches by ‘upzoning’ the bands to allow new services or by compensating existing licensees to figure out ways to deal with their ‘new neighbors.’”
A WifiForward spokesperson noted a growing list of routers, smartphones, TVs and computers now contain Wi-Fi 6E chips, the standard that incorporates the 6 GHz band. “Progress in the 6 GHz band, since the FCC’s decision, has moved much more quickly than previous bands because of the pent-up demand for more Wi-Fi spectrum,” the spokesperson said: “Consumers are already benefiting from the long list of devices that are already on the market.”
UTC appreciated the chance to meet with Rosenworcel aides last week (see 2112160035) on the stay request and petition for rulemaking, a spokesperson emailed. “We look forward to working with the Commission to develop rules that will enable unlicensed access to the 6 GHz band while preventing and addressing interference and providing cost reimbursement to incumbent licensees.”