Federal Court Upholds Unlicensed WiFi in 6-GHz Band

(Image credit: Future)

A federal appeals court has upheld most of the Federal Communications Commission's decision to open the 6-GHz band to unlicensed use.

The U.S. Court of Appeals for the D.C. Circuit, in a decision handed down Tuesday (December 28), said that the FCC conclusion on the risk of harmful interference was just the sort of technical call that the court owes "significant deference."

The FCC voted unanimously in April 2020 to allow the entire 1,200 Megahertz of the 6-GHz band to be shared with unlicensed WiFi, at the time the FCC's latest move in freeing up more spectrum for connecting 5G in-home devices — video streaming, video calls — and connecting internet of things (IoT) devices to the internet. Cable operators and technology companies supported the move. 

The D.C. Circuit said those challenging the decision had not provided a basis for challenging the FCC's conclusions that that could be done without "a significant risk of harmful interference."

Also: Utilities Seek FCC Stay of 6 GHz Order

While the court denied the petitions to review in most respects, it did say the FCC had not sufficiently responded to a request from broadcasters that it reserve a sliver of the band exclusively for mobile licensees, so the commission will have to get back to the court with a "further explanation" on that point.

Utility companies, broadcasters and public safety, all incumbent users of the band, pushed back on the FCC's no-harm, no-foul conclusion. Just this month, utility companies asked the FCC to stay the order until the court weighed in.

Petitioning the court to reverse the FCC decision were AT&T, Lumen Technologies, electric utilities, the Association of Public-Safety Communications Officials International (APCO), and the National Association of Broadcasters.

Broadcasters had argued for protecting the electronic news gathering (ENG) already using the band by reserving an 80 MHz sliver for them, saying there was too much risk of harmful interference to that even-more-crucial service in a time of pandemic.

But FCC engineers concluded that the band could be shared and ENG (and utility companies) protected, with the conditions the FCC had imposed. All the FCC commissioners agreed, but at least on the point of a sliver for mobile licensees, the court did not.

"Today’s decision is an important step in clearing the way for next generation WiFi access at a time when it is needed most," said FCC chairwoman Jessica Rosenworcel. "In this pandemic so much of modern life has migrated online. Six-GHz WiFi will help us address this challenge by offering more access in more places, faster speeds, and better performance from our WiFi networks.  It will also help us in our mission to connect everyone, everywhere.  That’s good for consumers, for broadband deployment, and for the nation’s wireless economy. 

"I want to thank the outstanding professionals in the FCC’s Office of General Counsel for their strong defense of the FCC’s work in this proceeding, as well as the Office of Engineering and Technology and the Wireless Telecommunications Bureau for their careful and expert work in addressing the complex technical issues presented in the record. It is encouraging to read the Court’s strong approval of this work and we look forward to addressing on remand the narrow issue that the court identified.”

“NCTA is gratified that the D.C. Circuit has upheld virtually all of the Federal Communications Commission’s 6 GHz Order," said NCTA–The Internet & Television Association, the cable broadband industry group. "Because of the Commission’s unanimous, bipartisan 6 GHz Order, U.S. consumers will soon have greater access to next-generation Wi-Fi technology to meet their rapidly growing need for broadband internet access. The Commission’s carefully crafted technical rules ensure that these new technologies, which are already entering the marketplace, can flourish without causing harmful interference to licensed users in the band. The Court’s decision on the Commission’s 6 GHz Order, while seeking further explanation of one narrow issue, is a victory for consumers, businesses, and the U.S. economy. We hope and expect that the Commission will promptly clarify the single limited issue on remand.”

"The Court’s decision is a starting gun for completing the rulemaking so that consumers can fully benefit from this historic expansion of unlicensed spectrum," said Michael Calabrese, director, Wireless Future Project at New America. "The Commission’s remaining challenge is to increase the indoor power levels to allow whole-home Wi-Fi and to authorize the very-low-power peripheral devices that will make this band fully functional for AR, VR and other innovation.

"The FCC’s world-leading 6 GHz Order allows every American consumer, business, school and venue to use 5G-quality applications, including augmented and virtual reality on mobile devices, provided they have access to a high-capacity fixed internet connection."

Calabrese also wanted to provide the FCC some help in explaining why it did not reserve the spectrum broadcasters had asked.

“The Court’s remand is far narrower and easily explained," Calabrese said. "In fact, the answer to the Court’s question is implicit in the FCC’s bipartisan goal to generate enormous future benefit for consumers and the economy by opening very wide and contiguous channels that will power the next two generations of gigabit-fast Wi-Fi technology."

"The D.C. Circuit’s opinion upholding the vast majority of the FCC’s 6 GHz Order is welcome news to WISPA’s fixed wireless operator members," said Louis Peraertz, VP of policy for WISPA, the wireless internet service providers association. "In rejecting more than a dozen technical arguments from several petitioners, the Court deferred to the FCC in the exercise of its engineering judgment. The D.C. Circuit remanded, however, a portion of the 6-GHz Order for not adequately responding to the request of licensed broadcasters that the Commission reserve a 'sliver' of the 6-GHz band for mobile licensees because of the interference they faced in the 2.4-GHz band. We look forward to the FCC resolving this and the remaining technical issues in the pending Further Notice of Proposed Rulemaking proceeding so the Agency can finalize its decision to unlock the 6 GHz band for unlicensed standard power use for outdoor operations." ■

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.