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Microwave Licensees Challenge FCC’s Decision to Allow Uncontrolled Low Power Devices in 6 GHz Band

In late April 2020 the FCC adopted sweeping new rules that will allow potentially hundreds of millions of new WiFi access points and other unlicensed devices to transmit on the same 6 GHz frequencies currently used by public safety agencies, energy companies, telecom carriers and many other licensees for point-to-point communications. The FCC’s rules are premised on use of untested “automatic frequency coordination” (AFC) systems to prevent standard power WiFi devices from operating on the same channel as a nearby microwave system, and on equipment labels¬†warning consumers not to use “Low Power Indoor” devices while outside or in moving vehicles. The FCC believes that these conditions will keep the potential for interference to a manageable level. (We provided further description of the new rules in an April 8 article).¬†

With the tech companies projecting consumer demand for nearly one billion of these devices in a band already used by about 100,000 licensed microwave systems even a low statistical probability of interference will translate to a large number of actual interference cases. Unfortunately, the FCC has provided no mechanism for licensees to identify, report or promptly terminate interference that will be caused by these uncontrolled and uncontrollable consumer devices. The result will be disruption to critical communications that will only get worse as more and more unlicensed devices flood the market and as resources to track and terminate interference are spread thin.

The FCC’s unprecedented order is being challenged on two fronts: APCO, an organization representing public safety and government licensees, has asked the FCC to reconsider the rules. APCO argues that the FCC failed to address the potential impact on public safety communications, as required by the federal Communications Act. APCO points to the lack of effective means to prevent consumers from using Low Power Indoor devices on balconies, rooftops, in moving vehicles, etc. as well as any means for licensees to quickly require interference causing devices (assuming they can even be identified) to be shut down. APCO has asked the FCC to stay these rules until they can be reconsidered because of the likelihood for harm if uncontrolled devices are allowed to flood the market before interference controls can be put in place. Not surprisingly, the tech companies oppose APCO’s petition, arguing that there is great consumer demand for additional WiFi capacity, and in any event, interference is unlikely until consumers have purchased a large number of devices. 

Two parties, AT&T and the Edison Electric Institute (EEI), have appealed the FCC’s decision to the U.S. Court of Appeals for the D.C. Circuit. EEI also filed a petition with the FCC asking for a stay of the order while the case is pending appeal. EEI raises arguments similar to those of APCO, but also points to the FCC’s unjustified reliance on computer simulations to support its opinion that interference is unlikely, without any real-world testing to validate the assumptions underlying the FCC’s theoretical analyses.  

There is a limited window of opportunity for interested parties to intervene in support of the pending court challenges: by July 6 to intervene in support of AT&T’s appeal and by July 17 on EEI’s appeal. The court will probably consolidate the two cases so intervention in one will effectively include participation in both. If your company would like to file in support of APCO’s petition for reconsideration or participate in the court challenges to the new rules, or if you have any questions about how this decision could impact your company’s operations, please do not hesitate to contact us. 

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