DC Circuit Upholds FCC Order Reallocating Part of 5.9 GHZ Band for Unlicensed Use

On August 12, 2022, the U.S. Court of Appeals for the D.C. Circuit (“D.C. Circuit”) struck down a challenge to a 2020 Report and Order by the Federal Communications Commission (“FCC” or “Commission”) which reallocates 45 MHz of the 5.850-5.925 GHz spectrum band (“5.9 GHz band”) for commercial unlicensed use, including Wi-Fi and similar services. Specifically, the FCC designated the 5.850-5.895 GHz portion for unlicensed use, while allocating the 5.895-5.925 GHz section for intelligent transportation system (“ITS”) operations.

In June 2021, the Intelligent Transportation Society of America and American Association of State Highway and Transportation Officials appealed the FCC’s Report and Order, arguing that it   violated the Transportation Equity Act and unlawfully revoked or modified FCC licenses. In its Decision, the D.C. Circuit held that the Report and Order did not violate the statute, and stated that it disagreed with the petitioners’ arguments “on all fronts.”

The D.C. Circuit’s Decision clears the way for new and innovative uses of the 5.9 GHz band. For example, the newly allocated unlicensed spectrum is particularly valuable for broadband services because, when combined with adjacent Unlicensed National Information Infrastructure (“U-NII”) spectrum in the 5.725-5.850 GHz band, a provider would have a large contiguous block of unlicensed spectrum that could be used for four 40-MHz Wi-Fi channels, two 80 MHz Wi-Fi channels, or one 160 MHz Wi-Fi channel.

Due to its proximity to the U-NII band, most existing Wi-Fi equipment will need only a software or firmware upgrade in order to allow consumers to access the 5.9 GHz spectrum. Under the FCC’s equipment authorization rules, a change to an existing radio frequency (“RF”) device to add a new frequency band is permitted as a “Class II permissive change” as long as there are no hardware changes.

Moreover, the new rules will enable RF equipment to utilize the entire contiguous 160 MHz channel without having to include dynamic frequency selection (“DFS”) interference mitigation technology. Accordingly, the entire U.S. will have continuous access to this channel.

While the new spectrum allocation presents significant opportunities for broadband providers, the FCC has imposed new and convoluted rules regarding use of the 5.9 GHz band. Additionally, the many wireless carrier that now have STAs for use of the subject spectrum will not be able to renew those STAs and must determine whether to continue use of that spectrum or utilize it in compliance with the new rules.

Please contact Ronald E. Quirk (req@commlawgroup.com) if you have any questions.