Today, in AT&T Services, Inc. v. FCC, the D.C. Circuit largely upheld the FCC's order that opened the 6 GHz band for use by unlicensed devices. The 6 GHz Order (2020) cleared 1200 MHz of spectrum for unlicensed use, which quadrupled the total amount of spectrum available for unlicensed devices, most notably Wi-Fi routers and Internet of Things (IoT) devices that use Wi-Fi.
The D.C. Circuit's decision greenlights the next generation of unlicensed devices, dubbed "Wi-Fi 6E." Consumers likely experience faster speeds and lower network congestion with Wi-Fi 6E, which makes use of the 6 GHz band's higher capacity than 2.4 GHz and 5 GHz bands that previously were allocated for unlicensed use. Consumers also are likely to be able to connect more devices to home Wi-Fi routers due to the increased capacity. Free State Foundation Senior Fellow Andrew Long discussed the benefits of and need for Wi-Fi 6E prior to release of the 6 GHz Order.
Licensees operating in the 6 GHz band challenged the 6 GHz Order under the Communications Act and Administrative Procedures Act (APA), arguing that the order would cause harmful interference with their licensed operations despite the order's mitigating measures. The court dismissed all but one of these challenges because the FCC adequately explained its reasoning, the Commission met its obligations under the APA, or the challenges relied on a "zero interference" standard that the agency never adopted. However, the court did remand one aspect of the 6 GHz Order to the Commission, based on its conclusion that the agency failed to address arguments made by the National Association of Broadcasters regarding interference with mobile operators. Because the court remanded the 6 GHz Order in response to this challenge, and did not vacate it, the order remains in effect and the Commission will have opportunity to address the issue on remand.
Throughout the opinion, the court
remarked that the FCC's decisionmaking for preventing signal interference in
the 6 GHz Order "requires a high level of technical expertise
meriting deference to the Commission’s informed discretion." And the court
also remarked that the FCC's interference mitigations aim to make the risk of
harmful interference "insignificant," not "zero." Court
challenges to FCC spectrum allocations do not prevail solely by showing
potential interference, as long as the Commission adequately explains why it
believes the risk of interference is low—a technical judgment that the court
will not second-guess.
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