FCC Gets Lots of Questions on 4.9 GHz Order During DC Circuit Argument
FCC General Counsel Adam Candeub faced some tough questions as he defended the agency's order establishing a regime that's designed to promote use of the 4.9 GHz band by giving the FirstNet Authority access to the spectrum (see 2509160005). A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit heard oral argument Monday.
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The FCC’s approach has been controversial and was opposed by the Coalition for Emergency Response and Critical Infrastructure (CERCI) and other groups. CERCI represents Verizon, T-Mobile and additional interests that have opposed FirstNet's -- and AT&T's -- use of the band.
“This case goes to the heart of the commission’s authority, its statutory duty to license our nation’s spectrum and ensure efficient and effective use of that spectrum,” Candeub said. “We have a bunch of unlicensed users who can’t coordinate [and] who constantly have interference problems.” The FCC had long sought a solution to see the spectrum deployed, he said.
The point of the order is “to enable FirstNet to use this other band of spectrum,” said Judge Robert Wilkins. Under a “very weird arrangement,” the band manager is the licensee but isn’t allowed to use spectrum, he noted. “The only point of this is to create a nonfederal entity to bring this within the FCC's jurisdiction.”
FirstNet isn’t the licensee, Candeub argued -- it shares spectrum with the band manager, which is the licensee. Such sharing isn’t unprecedented and involves NTIA, under which the FirstNet Authority falls, he said.
NTIA oversees the appointment of authority board members and has oversight of FirstNet, Candeub said. “What does any of that have to do with … the FCC’s decision of selecting the band manager and so forth?” Wilkins asked.
Judge Gregory Katsas said he had reviewed the FCC order, and the first reference to NTIA is a footnote that says, “NTIA is fine with just letting FCC do all of this.” Candeub responded that the agreement was informal. “That’s the way we’ve been doing business, and … it has worked fairly well.”
Wilkins said an agreement seeming to work well and being legal “are two different things.”
Judge Neomi Rao said CERCI argues that FirstNet is restricted to using spectrum approved by Congress. “In response, the FCC just points to a lot of general authorities it has, which, frankly, I never find all that persuasive.”
Joshua Turner, representing the Fraternal Order of Police, told the judges that the group “enthusiastically” supports the FCC order. The 4.9 GHz band “has been an ongoing problem” and is 90% unused. “The record shows that for years, this band has not lived up to its promise,” Turner said. “FirstNet has worked exactly as Congress intended.”
Turner argued that the president ultimately gets to decide how spectrum is used under the Communications Act. “FirstNet’s authority to operate in this spectrum will ultimately be at the discretion of the president,” he said. “What the FCC has done is exercise its broad general authority.”
Jenner & Block’s Jessica Ring Amunson, representing CERCI, asked the court to overturn the order. The FCC used “a workaround” to circumvent a prohibition on the commission directly assigning licenses to federal entities, she said. “Each step of that workaround is independently contrary to law.”
Amunson also faced questions, with Wilkins saying that challengers may have a “ripeness” issue because the FCC established rules but hasn’t given FirstNet use of the 4.9 GHz band.
Rao noted that while the Middle Class Tax Relief and Job Creation Act of 2012, which created FirstNet, addressed only the initial assignment of 700 MHz spectrum, “I get the sense that the initial license allocation is a floor and not a ceiling.” If the law allows FirstNet to contract with other entities, “why wouldn’t that include something like a sharing agreement” with the 4.9 GHz band manager? FirstNet is “specifically given contracting authority,” she added.
Congress limited FirstNet to the 700 MHz band, Amunson replied. The contracting authority is with AT&T, “which then uses that spectrum for commercial purposes.” Rao countered that provisions in the implementing legislation could be read in different ways.