FCC Declines to Stay Rules on Use of Unlicensed Devices at 6 GHz

This is an update on the FCC’s recent proceeding (ET Docket No. 18-295) to allow the deployment of new unlicensed transmitting devices, most likely for use as Wi-Fi devices, in the 5925-7125 MHz (“6 GHz”) band. The rules allowing unlicensed devices at 6 GHz became effective on July 27, 2020, and the FCC believes some 6 GHz devices could hit the market by the end of this year. 

Several parties have appealed the FCC’s decision to the U.S. Court of Appeals for the D.C. Circuit. Two parties, the Edison Electric Institute (“EEI”) and the Association of Public-Safety Communications Officials International (“APCO”), also filed petitions with the FCC asking that the rules be stayed until the appeals are resolved. The FCC released an Order on August 13, 2020, denying the petitions for stay.

The FCC based its refusal to stay the new rules on the following points, each of which is subject to criticism: 

• The FCC did not conclude, as APCO had argued, that interference to fixed microwave systems is a statistical certainty. [But the FCC’s analysis did conclude that interference is a statistical possibility, by stating that there is “no significant potential” for harmful interference.] 
• No statute or FCC regulation requires the FCC to mandate use of an Automated Frequency Coordination (“AFC”) system for low power indoor devices to protect 6 GHz microwave systems. [This begs the question of the FCC’s statutory responsibility to adopt regulations to manage spectrum in the public interest and to promote public safety use of wireless technology].   
• There is no need for an AFC system to help identify and eliminate interference caused by low power indoor devices because these devices will not present a significant risk of causing interference. [Just because there is a low risk of interference does not mean there does not need to be a procedure to quickly and inexpensively eliminate the interference.] 
• The FCC does not believe low power indoor devices will cause interference because consumers will be advised to use them only indoors, the enclosures may not be made weather resistant, and they may not operate on batteries. [There is no evidence that consumers will abide by these operating conditions, nor that indoor devices will always be blocked by sufficient building attenuation to protect licensed microwave systems]. 
• The FCC does not need to consider evidence in its files that show how long it takes the Enforcement Bureau to resolve interference cases because the party raising this point did not provide citations to these cases. [The record in the docket cited to a number of reported cases showing it can take many months for the Enforcement Bureau to resolve interference from unlicensed devices to FAA radar facilities; there is little hope that FCC resources will be expended to terminate interference from consumers’ Wi-Fi devices].  
• Microwave licensees will not suffer “irreparable harm” if the rules are not stayed because the Enforcement Bureau will be responsible for tracking down and correcting interference, not the microwave licensees themselves. Potential interference to microwave systems is too speculative to constitute irreparable harm. [The FCC’s proposal for licensees to rely on the Enforcement Bureau to protect microwave systems is almost laughable. There are very few inspectors, they are often located far from areas experiencing interference, they do not have a large inventory of tracking equipment, and the administrative process is not prompt or robust enough to expect them to devote any meaningful attention to finding interference from a consumer’s Wi-Fi device].  
• There is no immediate threat to microwave systems because it will take a very long time for a large number of unlicensed devices to be deployed. [On the one hand, the FCC disputes that there will be very many 6 GHz Wi-Fi devices in the near term, yet it also claims there is significant pent-up demand such that the deployment of these devices cannot be delayed.]  
• The cable industry submitted information about a Monte Carlo simulation that used data from 500,000 Wi-Fi access points to demonstrate that even large numbers of Wi-Fi devices are unlikely to cause interference. [The FCC’s continued reliance on the CableLabs study is subject to challenge because the raw data was not placed in the record, only a very limited summary was filed based on data from an undisclosed third party, and the data was limited to 5 GHz Wi-Fi devices operating in residential environments.] 

The court appeals are unlikely to be resolved by the end of the year. The FCC received a couple petitions for reconsideration, which could affect timing of the court appeals. In the meantime, 6 GHz microwave licensees should benchmark the performance of their existing operations before these devices come to market and consider protocols for identifying potential instances of Wi-Fi interference.  

As always, please let us know if you have any questions about this proceeding or other regulatory issues affecting your communications systems. 

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