FCC Takes Action to Unleash Wi-Fi 6E, Wi-Fi 7

On November 2, 2022, the FCC's Office of Engineering and Technology (OET) announced that it had conditionally approved 13 Automated Frequency Coordination (AFC) systems designed to enable shared use of the 6 GHz band between licensed and unlicensed devices.

By preventing harmful interference to incumbent licensed microwave links, AFC will make available 1200 MHz of high-value, mid-band spectrum to Wi-Fi 6E devices operating at standard power levels – which, in turn, will deliver to consumers increasingly faster speeds, lower latency, and better coverage.

Source: Wi-Fi Alliance®

The consumer popularity of Wi-Fi is both immense and steadily growing. Consequently, existing unlicensed spectrum in the 2.4 GHz and 5 GHz bands long has been subject to overcrowding. More capacity, particularly contiguous swaths able to support wider Wi-Fi channels – and, thus, faster speeds – was needed.

In response, the FCC in April 2020 adopted a Report and Order opening the 6 GHz band to flexible unlicensed use, including Wi-Fi.

A December 28, 2021, post to the FSF Blog reported that the D.C. Circuit largely upheld that agency action in AT&T Services, Inc. v. FCC.

The following day, FSF President Randolph May in a Press Release heralded that decision "because of the way the court broadly viewed the exercise of the Commission's core spectrum management responsibilities" and for "emphasizing the considerable degree of deference to be accorded to the FCC regarding technical spectrum management matters."

Integral to the Commission's conclusion that unlicensed devices can operate at standard power levels in the 6 GHz band both indoors and outdoors without causing harmful interference to incumbent licensed users is the role to be played by the AFC spectrum use coordination system.

(By contrast, the agency determined that indoor-only devices could operate safely at lower power levels without AFC. As a result, such devices are available today in the retail marketplace as well as from broadband Internet service providers.)

By paving the way for testing to begin, OET's conditional approval of 13 AFC database systems represents a noteworthy step forward in wireless networking – not only Wi-Fi 6E, but also Wi-Fi 7, the under-development successor specification recently demonstrated for Commissioners and agency staff by Intel Corporation and Broadcom Inc.

As those companies described in a slide deck filed in ET Docket 18-295 and GN Docket No. 17-183, Wi-Fi 7 expands network capacity by a factor of 5, latency by up to a factor of 100, and further improves coverage.

D.C. Circuit Unanimously Affirms the FCC's 5.9 GHz Band Order

Earlier today, in a development that will benefit WiFi users and make way for modern wireless vehicle safety capabilities, the U.S. Court of Appeals for the District of Columbia Circuit unanimously affirmed the Commission's November 2020 Order repurposing 45 MHz of fallow spectrum in the 5.9 GHz band for unlicensed use.

In a Statement, NCTA – The Internet & Television Association called the court's decision in Intelligent Transportation Society of America v. FCC "an enormous victory for American consumers," one that will lead to "even more reliable high-speed Wi-Fi and access to next-generation automotive safety applications."

Image by Jagathish Saravanan

In 1999, the FCC dedicated 75 MHz of beachfront spectrum to a proprietary vehicle safety technology that never lived up to its promise. Over twenty years later, the 5.9 GHz Order put that valuable wireless capacity to its highest and best use, making 30 MHz available for successor intelligent transportation systems technologies and repurposing the lower 45 MHz for WiFi and other unlicensed services.

Free State Foundation President Randolph May and I filed comments in support of the FCC's proposal. And in a Perspectives from FSF Scholars published shortly before the Commission adopted the 5.9 GHz Order, I argued that it represented "a fresh approach to this vastly underutilized spectrum that advances both public safety and the capabilities of WiFi networks."

Regrettably, in one of several recent high-profile instances of a breakdown in interagency spectrum coordination efforts necessitating process reform, the Department of Transportation raised objections to the Commission's proposal outside of established channels.

Eventually, several interested parties challenged the 5.9 GHz Order in court.

As Free State Foundation Director of Policy Studies and Senior Fellow Seth Cooper explained in a December 2021 post to the FSF Blog, consistent with the Supreme Court's 1968 decision in U.S. v. Southwest Cable Company, "[a] decision by the D.C. Circuit to uphold the 5.9 GHz Order would constitute a small but helpful step toward vindicating the FCC's 'unified jurisdiction and regulatory power' over commercial spectrum from interference by other federal agencies."

Today's decision does just that. In response to petitioners' claims that the 5.9 GHz Order "was arbitrary and capricious because it violated the Transportation Equity Act," the D.C. Circuit succinctly responded as follows: "It was not."

Specifically, the court held that:

[T]he Transportation Equity Act did not transfer away from the FCC its broad authority to manage the spectrum related to intelligent transportation systems. Instead, as the FCC noted, it simply required the FCC to account for the Department of Transportation's views and the needs of intelligent transportation systems when it does so. The FCC did that here.

D.C. Circuit Decision Clears the Way for a Wave of Wi-Fi 6E Devices

As Free State Foundation Director of Policies Studies and Senior Fellow Seth Cooper explained in his post to this blog yesterday, the FCC's just-released Eleventh Measuring Broadband America Fixed Broadband Report confirms that high-speed Internet access speeds continue to rise dramatically.

As they do, the Wi-Fi networks that consumers rely upon to connect their devices to broadband service likewise must evolve, lest they serve as a bottleneck. Wi-Fi 6, the latest iteration of the ubiquitous wireless networking standard, can deliver that crucial complementary capacity – but requires large swaths of relatively unencumbered spectrum to do so.

In 2020, the FCC delivered, opening up the 6 GHz band to flexible unlicensed use. On the heels of a D.C. Circuit decision largely affirming the Commission's bold action, both consumer electronics manufacturers and Internet service providers (ISPs) are making available "Wi-Fi 6E" devices able to make full use of the increased speeds made possible by 5G, cable 10G, fiber, and other next-generation broadband distribution technologies.

As I explained in "Wi-Fi 6E Can Modernize Unlicensed Wireless," a February 2020 Perspectives from FSF Scholars, the "Wi-Fi 6E" label distinguishes Wi-Fi 6 devices able to operate in the 6 GHz band from those relegated to the relatively congested 2.4 GHz and 5 GHz bands.

Why is that distinction so important? The contiguous 1200 MHz of spectrum the FCC made available in the 6 GHz band makes possible the wider (160 MHz) channels required to maximize the full potential of the Wi-Fi 6 technical specification.

On December 28, 2021, the D.C. Circuit largely rejected challenges to the FCC's 6 GHz Order. For additional information, please see Free State Foundation Legal Fellow Andrew Magloughlin's post to the FSF Blog summarizing the court's decision in AT&T Services, Inc. v. FCC.

In a press release, Free State Foundation President Randolph May applauded the D.C. Circuit's recognition of "the considerable degree of deference to be accorded the FCC regarding technical spectrum management matters" and, in particular, its appreciation of the technical implications of the agency's "harmful interference" standard.

In that decision's wake, Wi-Fi 6E devices are proliferating.

The 2022 Consumer Electronics Show is underway, and companies including Netgear and TP-Link have utilized that high-profile platform to unveil new Wi-Fi 6E devices. Netgear's Nighthawk WiFi 6E Router provides speeds up to 10.8 gigabits per second (Gbps) and the low latency (lag) that hard-core gamers, among others, crave.

Meanwhile, TP-Link's Archer AXE200 Omni AXE11000 Tri-Band Wi-Fi 6E Router utilizes mechanically rotating robotic antennas to deliver speeds up to 11Gbps:

Source: TP-Link's website.

In addition, ISPs are beginning to roll out Wi-Fi 6E-compatible routers directly to their subscribers. On January 3, 2022, Comcast announced that the new version of its xFi Advanced Gateway supports Wi-Fi 6E – and thus is the "first to support the speeds of the future – symmetrical Gigabit speeds" that the cable 10G platform promises to deliver.

In December 2021, Verizon also revealed a new router able to operate in the 6 GHz band. Notably, while the device is compatible with both its FiOS fiber-based offering and Verizon 5G Home Internet service, the company is providing it to subscribers of the latter first.

Delivering average download speeds that average 300 Mbps and peak at 940 Mbps, Verizon's robust fixed wireless broadband offering leaves no doubt that fixed 5G is a viable alternative to traditional home Internet service options. And Verizon's decision to prioritize the deployment of its Wi-Fi 6E router to its fixed 5G customers underscores the extent to which these two wireless distribution technologies complement one another.

6 GHz Order on Unlicensed Spectrum Upheld by D.C. Circuit

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.

FCC's "Unified Jurisdiction" over Commercial Spectrum Supports its 5.9 GHz Order

In January 2022, the D.C. Circuit will hear arguments in a case challenging the FCC's 2020 decision to repurpose spectrum in the 5.9 GHz band for flexible unlicensed wireless use, including Wi-Fi. The court ought to uphold the 5.9 GHz Band Order. Despite strong opposition to the order by the U.S. Department of Transportation (DoT) and by private litigants, the Commission's decision to repurpose 45 megahertz for unlicensed Wi-Fi was based solidly on the agency's delegated authority over commercial spectrum allocations. It's also good policy. The FCC's order will help realize the full economic and social benefits of next-generation Wi-Fi 6 technology. 

In Intelligent Transportation Society of America v. FCC, one of the questions the D.C. Circuit will address is whether the Commission's 2020 decision failed to comply Section 5206(f) of the 1998 Transportation Equity Act for the 21st Century (TEA). According to a court brief that was filed by private litigants on November 19, the Commission didn't consult sufficiently with the DoT regarding spectrum needs for the operation of intelligent transportation systems in the 5.9 GHz band. However, TEA Section 5206(f) was directed toward an FCC rulemaking that was to be completed before January 1, 2000. And the Commission did that. Nothing in the TEA alters the Commission's jurisdiction over commercial spectrum or its authority to issue the 5.9 GHz Order. 

In U.S. v. Southwest Cable Company (1968), the Supreme Court described Congress's establishment of the FCC "to serve as the single Government agency with unified jurisdiction and regulatory power over all forms of electrical communications, whether by telephone, telegraph, cable, or radio." The Commission's power to "prescribe the nature of the service to be rendered by each class of licensed stations," "assign bands of frequencies to the various classes of stations," and make rules and regulations necessary to carry out such purposes is contained in Sections 303(b), -(c), and –(g) of the Communications Act. Also, Section 303(r) authorizes the Commission to "generally encourage the larger and more effective use of radio in the public interest." 

The FCC exercised this considerable authority over spectrum when it reallocated the lower 45 megahertz of the 5.850-5.925 GHz band for unlicensed use and reassigned the upper 30 megahertz of the band for vehicle communications. Public policy reasons for supporting that reallocation were offered by Free State Foundation President Randolph May and Senior Fellow Andrew Long in public comments filed in the 5.9 GHz band proceeding in March 2020. 

 

Both before and after the Commission approved its 5.9 GHz Band Order, the DoT publicly opposed the reallocation of spectrum for unlicensed Wi-Fi use. DoT claimed future Wi-Fi use in the lower part of the band causing potential out-of-band interference with transportation-related communications. But the FCC's order included measures to prevent such potential interference. The Commission has recognized expertise in spectrum engineering matters and in adjudicating disputes over alleged signal interference claims.

 

Regrettably, the DoT's attempts to stall or undo the Commission's implementation of commercial spectrum policy fits a disturbing pattern. Over the last few years, executive branch agencies – such as the Department of Commerce, the Department of Defense, and the Federal Aviation Administration (which is housed within the DoT) – have tried to undermine the FCC's decisions regarding commercial spectrum allocations intended to advance 5G and Wi-Fi 6 networks. And although the DoT never denied the Commission's authority over commercial spectrum reallocation decisions, private litigants have continued the fight over the 5.9 GHz band.

A decision by the D.C. Circuit to uphold the 5.9 GHz Order would constitute a small but helpful step toward vindicating the FCC's "unified jurisdiction and regulatory power" over commercial spectrum from interference by other federal agencies. 

Article Forecasts Unlicensed Wi-Fi 6's Partnership with 5G Wireless

Amidst the fast rollout of 5G networks, it is all too easy to overlook the growth of Wi-Fi 6 and its role in supporting next-generation broadband network services. On December 1, Deloitte published an article titled "Wi-Fi 6: Unsung, underexposed—and indispensable to the future of enterprise connectivity." The Deloitte article offers the important insight that "5G may get the lion's share of the publicity, but Wi-Fi 6 devices are quietly outselling 5G devices by a large margin and will likely continue to do so for the next few years at least." Additionally: "Deloitte Global predicts that more Wi-Fi 6 devices will ship in 2022 than 5G devices, to the tune of at least 2.5 billion Wi-Fi 6 devices versus roughly 1.5 billion 5G devices." The article goes on to explain that "Wi-Fi 6 and 5G are designed to work together smoothly, and the wireless industry appears headed toward a future in which devices can roam securely and seamlessly between all types of wireless networks." As the article shows, Wi-Fi 6 will play a crucial role in the future of wireless services. 

Free State Foundation Senior Fellow Andrew Long provided an overview of the potential functional and economic benefits of next-gen Wi-Fi in his February 2020 Perspectives from FSF Scholars, "Wi-Fi 6E Can Modernize Unlicensed Wireless." The FCC's 2020 orders to repurpose spectrum in the 5.9 GHz and 6 GHz bands for unlicensed flexible use -- including Wi-Fi -- will help realize those benefits.

Wi-Fi Alliance Releases Report Highlighting Critical Role of Wireless Networks During COVID-19 Pandemic

2020 was a banner year for unlicensed spectrum. For the first time in decades, the FCC made available significant amounts of additional capacity for Wi-Fi. The Wi-Fi Alliance recently released a report that affirms the wisdom of those actions.

Long before the COVID-19 pandemic motivated many Americans to learn, work, seek treatment, and interact socially from the safety of their homes, Wi-Fi had started to outgrow unlicensed allocations in the 2.4 and 5 GHz bands. The exploding number of connected devices and ever-evolving requirements – higher speeds, lower latency – demanded not just more spectrum, but also contiguous wideband (160 MHz) channels able to take full advantage of Wi-Fi 6, the latest iteration of the technical standard.

The Commission responded in April by freeing up 1,200 MHz in the 6 GHz band for unlicensed use. I wrote in a February 2020 Perspectives from FSF Scholars about the potential of Wi-Fi 6 equipment operating in the 6 GHz band – branded commercially as "Wi-Fi 6E" devices – to modernize wireless networking.

In addition, in November the agency reallocated 45 MHz of spectrum in the 5.9 GHz band to unlicensed use. The Free State Foundation filed comments supporting that proposal, and I wrote a supporting piece, "The FCC's 5.9 GHz Proposal Would Advance Both Wi-Fi and Vehicle Safety," shortly before its adoption.

In a December 7 statement announcing the agency's approval of the first Wi-Fi 6E device, Chairman Ajit Pai highlighted the role that Wi-Fi has played during the current public health crisis and proclaimed a new era in wireless connectivity:

Today, we get an exciting glimpse of America's Wi-Fi future.... During the COVID-19 pandemic, we've all seen how Wi-Fi has enabled everything from work-at-home to telehealth to remote learning to streaming and gaming. Wi-Fi 6 will turbocharge each of these and more, and will also complement commercial 5G networks. Bottom line: The American consumer's wireless experience is about to be transformed for the better.

A December 2020 report prepared by Telecom Advisory Services LLC and released by the Wi-Fi Alliance quantifies just how important Wi-Fi networks are during these trying times. A few key takeaways:

• Global Wi-Fi use has increased roughly 82 percent during the pandemic.
• U.S. smartphone use of Wi-Fi increased over 10 percent in March.
• The number of devices connected to Wi-Fi networks has increased by 11 percent.
• The number of simultaneously connected devices has jumped at least 60 percent.