TR Daily Court Denies Request to Stay FCC's 6 GHz Band Order
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Thursday, October 1, 2020

Court Denies Request to Stay FCC's 6 GHz Band Order

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit today denied a request filed by the Association of Public-Safety Communications Officials-International and four utility groups to stay the FCC's 6 gigahertz band order pending judicial review of pending appeals (TR Daily, Sept. 8 and 10).

"Movants have not satisfied the stringent requirements for a stay pending court review," the judges said in an order in AT&T Services, Inc. v. FCC (consolidated cases beginning at case no. 20-1190) by Circuit Judges David S. Tatel, Robert L. Wilkins, and Gregory G. Katsas. They also denied APCO's alternative request for an expedited briefing schedule and oral argument and directed parties to submit within 30 days a proposed format for briefing of appeals.

The utility groups seeking a stay were the Edison Electric Institute (EEI), Utilities Technology Council (UTC), National Rural Electric Cooperative Association (NRECA), and American Public Power Association (APPA).

In August, the FCC's Office of Engineering and Technology denied petitions filed by APCO and EEI asking the Commission to stay implementation of the 6 GHz band order (TR Daily, Aug. 13).

The FCC item, which was unanimously adopted in April, freed up 1,200 megahertz of spectrum in the 6 GHz band for unlicensed use (TR Daily, April 23). Incumbents complained that the new rules would result in harmful interference to existing public safety, wireless, and broadcasting operations.

In addition to AT&T, APCO, and the utility groups, other appeals have been filed by the National Association of Broadcasters and CenturyLink, Inc. (which has rebranded as Lumen Technologies, Inc.).

The FCC and industry entities supporting the 6 GHz band order opposed the stay requests, arguing that the petitioners had failed to meet the threshold for a stay (TR Daily, Sept. 14).

"Great news for consumers, who stand to benefit from super-fast, #Wifi6/#Wifi6E services in the home and on the go!" FCC Chairman Ajit Pai tweeted of today's court decision.

"We're pleased with the court's decision denying the stay request," an FCC spokesman said. "We look forward to opening up the 6 GHz band for Wi-Fi 6 and enabling consumers to benefit from faster, innovative unlicensed applications and services. The Chairman applauds the FCC attorneys who worked on this matter and is confident that they will have similar success defending the 6 GHz Order on the merits."

"APCO will continue to fully prosecute its appeal of the FCC's 6 GHz order and remain highly vigilant of any harm caused by new unlicensed use of this band to mission critical public safety microwave operations," said Derek Poarch, executive director and the chief executive officer of APCO.

"We are disappointed with today's decision by the Court to deny a stay of the effectiveness of the Federal Communications Commission's (FCC, the Commission) order allowing unlicensed operations in the 6 GHz band," said Sheryl Riggs, president and CEO of UTC. "The FCC's order threatens to cause harmful interference to mission-critical communications in the 6 GHz band used by utilities, public safety and other vital users. We do, however, appreciate the court's prompt action and look forward to continuing our judicial appeal of the FCC's order."

Tobias Sellier, director-media relations & communications for APPA, said that "we are disappointed with the result and look forward to arguing the merits of the case."

Supporters of the 6 GHz band order welcomed today's court decision.

"Today, the D.C. Circuit Court made the right decision and rejected a request to stay the FCC's well-vetted 6 GHz order," WifiForward said. "By opening the 6 GHz band, the FCC advanced innovation, investment, and faster broadband in a time when connectivity has never been more important. It's a win for Wi-Fi and for consumers everywhere."

"In the midst of the national COVID-19 crisis when many Americans are relying on low-cost Wi-Fi for bandwidth intensive work, school, medicine and other accommodations, the FCC's 6 GHz rules are critical to meet the growing demand for Wi Fi connectivity while at the same time protecting public safety and utility operations," said the Wi-Fi Alliance said. "Wi-Fi Alliance will continue to support the FCC in its effort to defend the public benefits generated by affordable unlicensed connectivity that technologies like Wi-Fi will deliver in the 6 GHz band."

"Cisco is pleased with the Court's decision," said Mary Brown, senior director-technology and spectrum for Cisco Systems, Inc. "Cisco continues to believe that the FCC's technical rules will protect current and future microwave users in the band. As a result, we don't think that incumbents have anything to fear from an unlicensed underlay under the conditions prescribed by the FCC. Moreover, as a country, we simply must make more intensive use of radio spectrum and this is exactly what the FCC has done—and by doing so, enabling a new wave of innovation."

"A stay was always very unlikely because it requires a court to find a likelihood that the party opposing the FCC will prevail on the merits. The Commission should have little concern about the ultimate outcome of the litigation," said Michael Calabrese, director of the Wireless Future Program at the New America Foundation's Open Technology Institute. "Federal courts have rarely if ever second-guessed the FCC's technical expertise. And here the record shows the FCC examined a dozen dueling engineering studies and explained at great length why it concluded that low-power indoor use poses no undue risk of harmful interference.

"The court's ruling is great news for the tens of millions of workers and students who may be learning and working from home well into next year," Mr. Calabrese added. "For those with fixed broadband connections, the capacity of Wi-Fi is becoming the biggest constraint on high-capacity connectivity. If the FCC adopts the somewhat higher power level it is considering for indoor-only use, consumers and the economy will benefit from affordable and gigabit-fast Wi-Fi early next year." —Paul Kirby, [email protected]

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