Judge Warns DC Circuit Could Vacate FCC 6 GHz Order
U.S. Court of Appeals for the D.C. Circuit judges peppered both sides with questions, during an often highly technical oral argument Friday, as the FCC defended its order opening the 6 GHz band for Wi-Fi and other unlicensed use. AT&T, APCO, electric utilities and other plaintiffs argued the FCC never explained why it didn’t require use of automated frequency control (AFC) to protect incumbents from low-power indoor use, which got some support on the court. Judge Justin Walker, a new member of the court, warned the agency's order could be remanded or even vacated.
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“The FCC had an opportunity in this order to get everything right, could have opened up the 6 GHz band for Wi-Fi, while protecting public safety, the power grid and other licensed uses” by requiring use of AFC for all devices, said Jonathan Nuechterlein, representing petitioners. Why the commission failed to do so is “a mystery,” he said: There’s nothing in this order saying “AFC would have added significant cost to these devices. Indeed, the FCC identified no drawback to the use of AFC, which it called simple and easy to implement.”
Challenges to the order “seem to rest on your claim that the commission believed its order would eliminate all risks of harmful interference,” said Judge David Tatel. “If that were right, I think you’d easily win.” Instead, the FCC says the order is “designed to eliminate the risk of significant interference, not all interference.” If that’s the case, how can the order be “arbitrary and capricious?” he asked.
Petitioners aren’t arguing there’s only “an insignificant risk that at some point in time some of these billion odd devices will cause interference with some microwave lengths,” Nuechterlein replied. His side shows that “at some point over the next 10 years” some of these devices will “interfere with some of the 100,000 microwave lengths,” he said: “We don’t know what the government’s position is on that proposition.”
The FCC’s response is “that’s not what they’re intending to do,” Tatel countered. “The commission’s response is that the order will reduce the risk of significant interference and that if it occurs the commission has the legal authority to stop it.”
“When one of these links goes down, the harm for that day is already done,” Nuechterlein said: “There will be 911 calls that won’t go through. There will be failures to communicate with nuclear power reactors.”
Judge Patricia Millett and Walker asked about the FCC’s proposals in an NPRM, versus the language in the order. Millett also asked Nuechterlein how often interference would likely occur. Interference will become more common as devices “flood the market,” he said.
Millett asked several technical questions, including how many 6 GHz routers would be needed to take down a link. One device is “sufficient to interrupt the signals reaching the microwave receiver,” Nuechterlein said. “These routers are constantly communicating with other devices in the house.”
Some questions indicated the court could send part of the order back for further work.
The agency never proposed AFC for low-power devices but asked about the need for coordination, said FCC counsel James Carr. “You asked for information on that question, and you got plenty of comments,” Millett told Carr. “The thing that’s been bothering me” is where in the record the FCC addresses the concerns raised and explains why it didn’t require AFC, she said.
“The commission basically found that AFC was not necessary because there is no significant risk of interference,” Carr responded. “I get you say we’re not doing AFC,” Millett said: “Where is your substantive response to these important comments?”
Tatel raised questions about the utilization model cited by the FCC, which found an average activity factor of 0.4% for low-power devices. “My router is on all the time,” he said. Carr said he’s not an engineer and didn’t know the answer. “If you don’t know, how am I supposed to know?” Tatel said.
Tatel asked where in the order the FCC responded to NAB complaints that the commission has been unable to protect broadcasters from similar interference in the 2.4 GHz band. “That was one isolated case in the record,” Carr responded. Broadcasters never asked for help from the agency, he said.
Walker said the regulator “may have acted arbitrarily and capriciously.” The FCC says in “preexisting bands there have been no problems, but you didn’t cite any evidence," he said. “You described what you were doing instead of AFC, but you didn’t say why AFC was not a better alternative.” Tell us why the court should “remand, without vacating,” he said.
“The commission just basically said ‘AFC wasn’t necessary because there was an insignificant risk of harmful interference,’” Carr said. “I don’t think you should remand at all,” he said: “Vacating this order would be incredibly disruptive.”
The court probably “shouldn’t throw the whole order out and make you start from scratch,” Walker said: “We can just remand so that you clarify some things that you should have addressed before.” The lawyers who argued Friday declined to comment.