2/23 Coalition Amicus Brief Defending 2020 FCC Order Opening 6 GHz band for Unlicensed Sharing

New America's Open Technology Institute filed an amicus brief United States Court of Appeals for the District of Columbia Circuit with Public Knowledge and the Benton Institute for Broadband & Society defending the Federal Communications Commission's (FCC) Order to open up the 6 GHz band for unlicensed sharing and urging the Court to uphold the Commissions decision. OTI has long supported the move to open up this band to bolster Wi-Fi services, address the "spectrum crunch" of mobile offload that has been congesting the Wi-Fi bands, and prepare for the next-generation Wi-Fi 6 services that will serve as the complement to mobile 5G services in the years to come. In 2019, OTI wrote and filed extensive comments and reply comments with coalition partners urging the FCC to open up the 6 GHz band for unlicensed sharing, a proceeding that resulted in alandmark decision by the FCC to do just that in April 2020. Available below is a summary of the argument from the amicus brief:

Congress created the Federal Radio Commission in 1927, and merged it with the newly created Federal Communications Commission (FCC) in 1934. Congress intended “to maintain, through appropriate administrative control, a grip on the dynamic aspects of radio transmission.” FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 138 (1940). Among the original and most significant responsibilities given by Congress to the FCC is “to study new uses of radio . . . and generally encourage the larger and more effective use of radio.” 47 U.S.C. § 303(g). The FCC’s willingness to reexamine pre-existing spectrum allocations – always over the objections of incumbents claiming that these changes would create harmful interference and wreak havoc on existing technologies – has produced innumerable innovations that have vastly improved our lives, enhanced our economy, and maintained U.S. dominance in wireless innovation.

One of the most important innovations by the FCC was authorization of low-power spectrum access pursuant to Part 15 of the Commission’s rules. Colloquially referred to as “unlicensed” spectrum in contrast to spectrum access requiring an explicit licensed or license by rule, unlicensed spectrum has become the primary way by which consumers access the internet in their home – connecting devices through protocols such as Wi-Fi and Bluetooth. Many devices no longer have ethernet jacks or other means to physically connect to modems or routers, relying entirely on unlicensed spectrum to connect. Machine-2-machine uses, also referred to as the “internet of things” (IoT), have skyrocketed within the home as consumers use devices such as Amazon’s Alexa to provide an increasing range of “smart home” functions ranging from home security to energy efficiency.

The utility of indoor Wi-Fi, as with the utility of the internet generally, extends into all areas of life. This includes into the fields of medicine, public safety, and education. Wi-Fi enables medical professionals to monitor patients wearing sensors that track temperature, heart rate and other vital signs. It enables multiple students in the home ranging from pre-schoolers to graduate students to simultaneously access their own lesson plans and classes on their separate devices. It has proven a literal life-saver during the Covid Pandemic lockdowns, permitting entire families to work and learn remotely from anywhere in their home on any device they choose.

As the FCC observed in the Order, the “phenomenal” growth of unlicensed spectrum has created increasing demand. The current allocations of unlicensed spectrum usable for consumer devices – especially for indoor uses in the home — have become increasingly congested. This trend has been accelerated by the Covid pandemic, which has forced significant educational and work activity to take place remotely. Additionally, as homes upgrade to faster connections to handle the load, WiFi must handle faster speeds. This requires the use of new Wi-Fi protocols that require larger channels than existing allocations made over the last 4 decades can support. The FCC’s Order provides critical unlicensed spectrum access for these devices. Thanks to the FCC’s carefully balanced 6 GHz Order, the Wi-Fi Alliance, one of the important standards bodies in the Wi-Fi ecosystem [cite], has certified a new standard specifically to take advantage of the newly available spectrum on a non-interfering basis. This standard, “Wi-Fi 6e,” will allow devices to operate at gigabit speed – many times faster than previously available Wi-Fi.

As discussed below, the FCC properly balanced the interests of existing licensed incumbents with its multiple mandates from Congress. These mandates include the general obligations to provide “to all people of the United States . . . a rapid, efficient Nation-wide and world-wide communication service,” 47 U.S.C. § 151, and to “encourage the larger and more effective use of radio in the public interest,” 47 U.S.C. § 303(g), as well as the specific Congressional mandate that the FCC identify 100 MHz of new spectrum to allocate for unlicensed use by December 31, 2022. The new devices and services supported by the FCC’s opening approximately 1,200 MHz of contiguous spectrum for indoor use will provide tremendous benefit to the American people – without causing harmful interference to incumbent licensed services. These benefits include sufficient bandwidth to support multiple students engaged in remote learning, multiple adults working in the home, and to relieve congestion in densely populated areas. The speed with which manufacturers are certifying and bringing Wi-Fi 6e devices to market validates the FCC’s expert judgment that the public interest is best served by the rules adopted in the Order.

Most importantly, Amici emphasize that the devices and services enabled via the Order as much a part of public safety use as microwave links used by Petitioners APCO and other electric and telephone utilities. The additional bandwidth supported by the FCC’s new allocation will continue to facilitate the dramatic growth of telemedicine. The speeds enabled by the newly supported channel sizes make it possible for wearable devices and diagnostic tools operating in the home or institutional settings to provide life-saving medical information to medical professionals in real time. Home security devices will use the newly available bandwidth to provide high-resolution video to assist first responders.