DC Circuit Upholds FCC Decision to Clear Path for Next-Gen Wi-Fi

WASHINGTON — A federal appeals court on Tuesday upheld a 2020 decision by the Federal Communications Commission to free up the 6 GHz band for next-generation Wi-Fi.

Writing for the unanimous three-judge panel of the U.S. Court of Appeals for the D.C. Circuit, Judge David Tatel said opponents of the move — a group that included commercial communications providers, electric utilities and the Association of Public-Safety Communications Officials — simply failed to convince the court the FCC had exceeded its authority or ignored obvious problems with the proposal.

“This failure is especially significant because in issuing the order, the commission was acting to ‘foster innovative methods of exploiting the spectrum,’ this requiring our ‘greatest deference,’” Tatel wrote, quoting from the 2006 case, Mobile Relay Associates v. F.C.C.

While the opinion rejected almost all of the plaintiffs’ claims, there was one exception — a petition for review from the National Association of Broadcasters.

“Because the commission failed adequately to respond to their request that it reserve a sliver of [the 6 GHz band] exclusively for mobile licensees, we remand to the commission for further explanation on that point,” Tatel wrote.

In a written statement, FCC Chairwoman Jessica Rosenworcel said Tuesday’s decision “is an important step in clearing the way for next generation Wi-Fi access at a time when it is needed most.”  

“In this pandemic so much of modern life has migrated online,” she said. “6 GHz Wi-Fi will help us address this challenge by offering more access in more places, faster speeds, and better performance from our Wi-Fi 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.” 

Harold Feld, senior vice president at Public Knowledge, a group that advocates for an open internet and access to affordable communications tools, said after two years of living with COVID-19, “everyone should recognize the importance of working Wi-Fi in our lives.”

Speaking on behalf of his group, which filed an amicus brief with the court in support of the FCC, Feld said “the FCC’s 2020 order opening the 6 GHz band made much-needed new unlicensed spectrum available for telemedicine; streaming for education, work or entertainment; and thousands of other uses. Today, the D.C. Circuit reaffirmed that it will not second-guess the technical expertise of the FCC when the agency balances the needs of both legacy licensed users and new innovations in Wi-Fi.”

Also pleased was the industry group NCTA, the Internet and Television Association, which said in its own statement that it was “gratified” the D.C. Circuit upheld virtually all of the commission’s 6 GHz order.

“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 industry group said. “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.”

Rosenworcel thanked the FCC’s Office of General Counsel for its defense of the agency’s work in the 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,” Rosenworcel said.

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