5/25 FCC Comments on 6 GHz Remand Opposing NAB Interference Claims

The Open Technology Institute at New America filed comments with public interest ally Public Knowledge urging the Federal Communications Commission (Commission) to reject on remand claims by the National Association of Broadcasters that unlicensed sharing of the 6 GH band will cause harmful interference to electronic news gathering at indoor venues. An introduction and summary is available below:

Public Knowledge (PK) and the Open Technology Institute at New America (OTI) respectfully submit these comments in response to the Public Notice titled "Office of Engineering and Technology Seeks Comment Following Court Remand of 6 GHz Band Order" (PN). PK and OTI urge the FCC to find that NAB’s concerns do not require any changes to the 6 GHz Order.

As an initial matter, OET accurately construed the remand order as “limited in scope.” Supreme Court precedent and the D.C. Circuit’s own opinion in this matter support OET’s decision to narrowly construe its obligation. As the Supreme Court held, “[t]he failure to respond to comments is significant only insofar as it demonstrates that the agency's decision was not based on a consideration of the relevant factors.” The D.C. Circuit has applied this principle to prior FCC proceedings, holding that “the FCC need not address every comment, but it must respond in a reasoned manner to those that raise significant problems.” In the context of this proceeding, the D.C. Circuit explicitly stated that “[i]t is conceivable that the Commission may be able to explain why its experience in the 2.4 GHz band supports its ability to protect licensed mobile operators from harmful interference.” Refusing to vacate the 6 GHz Order, the D.C. Circuit merely remanded to the FCC for “further explanation.” Essentially, on remand, the Commission only needs to explain why it chose to ignore NAB’s concerns—a decision that is readily justified.

More importantly, a remand order is not a general excuse to reopen the record and give the NAB (or other commenters) a “second bite at the apple.” A remand, especially where the court has simply remanded for further explanation of the Commission’s reasoning, is designed to address those issues specifically remanded by the court—and no others. Of course, the Commission would need to take additional action if it concludes that it cannot adequately answer the court’s remand based on the current record. In such an event, the Commission would need to issue a separate notice of proposed rulemaking to modify the original rulemaking in accordance with the APA—simply piggybacking on the existing remand order would not suffice.

But, such drastic measures are unnecessary here. The FCC can easily explain why NAB’s claim that interference with BAS operations in the 2.4 GHz band necessitates reserving spectrum in the 6 GHz band for licensed operation lacks merit. First, NAB did not substantiate its claim that broadcasters have experienced significant interference in the 2.4 GHz band. Second, even if NAB had substantiated its claim, unlicensed interference in the 2.4 GHz band has no bearing on the potential for unlicensed interference in the 6 GHz band. They are materially different bands with different characteristics, different rules, and different use cases. In addition to permitting substantially higher power in 2.4 GHz than allowed for indoor use in 6 GHz, the 2.4 GHz band does not require a contention-based protocol for use. While NAB refers to all unlicensed operations in 2.4 GHz as “Wi-Fi” (which does use a contention-based protocol), the 2.4 GHz band is home to hundreds of millions of unlicensed devices, such as baby monitors and Bluetooth devices, that do not use contention-based protocols. Additionally, the 2.4 GHz band is home to licensed ISM radiators that operate at much higher power than unlicensed devices. The experience in the 2.4 GHz band, therefore, has no bearing on the completely different operating rules, propagation characteristics, and device population of the 6 GHz band, especially with regard to indoor use.