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Wi-Fi Spectrum Battle Spotlights Struggle for Scarce Airwaves

Oct. 28, 2020, 9:01 AM

Tech companies that deliver music, games and shopping to smartphones and other devices are battling in court for a necessary resource — spectrum for Wi-Fi.

The companies, including Apple Inc., Microsoft Corp. and Alphabet Inc.'s Google are defending a Federal Communications Commission plan that would free up airwaves in the 6 GHz band to feed consumers’ Wi-Fi cravings.

Current users of the band, including AT&T Inc., utilities and TV broadcasters, want the U.S. Court of Appeals for the D.C. Circuit to strike down the agency’s plan to allow Wi-Fi signals on the spectrum band. They worry it will cause interference with their existing communications operations.

The fight shows the challenge the FCC faces in trying to allocate a precious and finite resource — spectrum — among industries that all say is vital to their operations.

The current users’ legal argument hinges on showing that an FCC analysis that found the Wi-Fi plan will protect the existing operations is shoddy and violates the Administrative Procedure Act.

“You’ve got studies that are showing that the interference is going to be, without a doubt, just awful,” said Brett Kilbourne, general counsel of the Utilities Technology Council, a party to the case.

Tech companies including Apple and Microsoft, as well as chipmaker Broadcom Inc. and cable industry trade group NCTA, have all joined the case to defend the FCC’s order.

The FCC may prevail because courts often defer to agencies that follow federal rulemaking procedures, said Daniel Lyons, a professor at Boston College who focuses on administrative and telecom law.

“I thought the order was fairly well reasoned, and it certainly addressed the potential for interference, even if it did not resolve the issue the way the litigants would have preferred,” Lyons said.

The FCC declined to comment on the case.

The commission argued in its 6 GHz band order that it has thoroughly analyzed interference concerns and concluded that current operations would be protected from Wi-Fi devices. The agency came to that conclusion after reviewing studies by incumbent users including AT&T and Southern Co. opposed to the changes, and supporters such as Apple and Broadcom.

The FCC’s Wi-Fi push isn’t limited to the 6 GHz band. Chairman Ajit Pai announced Tuesday that the agency would vote in November to allow Wi-Fi services to use different airwaves that are currently reserved for technology designed to allow cars to talk to one another to avoid crashes.

Wi-Fi Fever

Consumers are snapping up Wi-Fi connected devices at accelerating rates, with the number of tablets, phones and other such products in circulation reaching 3.4 billion in 2023, up from from 2.2 billion in 2018, according to Cisco Systems Inc.

Facebook Inc.‘s Instagram, Microsoft Teams and Amazon.com Inc.‘s Alexa are among services that count on Wi-Fi for consumer access.

As consumers seek out such services, the number of public Wi-Fi hotspots in the U.S. is projected to triple to 61.6 million in 2023 from 2018, according to Cisco.

With so much Wi-Fi demand, the additional 6 GHz spectrum will alleviate data traffic jams, the tech companies and FCC say. It will also enable faster internet connections and new technologies, they say.

“The FCC made the right move in April,” WifiForward, a coalition of companies including Comcast Corp. and non-profit groups, said in a statement. “Connectivity has never been more vital.”

But Wi-Fi isn’t the only societal need, opponents of the plan say. They point out that entities already use the airwaves for critical purposes, such as secure utility communications, first responder dispatch services and news broadcasting.

Power companies are concerned that consumers may cause interference with communications systems they use to control electric grids. They say the FCC gave too much weight to studies in favor of its plan.

“Hopefully in the hands of an objective tribunal they will be able to assess these issues fairly and accurately,” Kilbourne said, referring to the appeals court.

The fight is early, with briefs yet to be scheduled. Oral arguments could be held in spring 2021, with a final ruling later that year.

The FCC has already won a legal battle tied to the order. The D.C. Circuit in September rejected requests to stay the directive by power companies and the Association of Public-Safety Communications Officials.

The court is unlikely to challenge the FCC’s finding that its plan protects incumbent users, said Daniel Deacon, a professor at the University of Michigan who specializes in administrative law.

“I think a court would be initially inclined to approach the issues in this case in a pretty deferential manner,” he said.

The case is AT&T Services, Inc. v. FCC, D.C. Cir., No. 20-01190, Stay petitions denied 10/1/20

To contact the reporter on this story: Jon Reid in Washington at jreid@bloomberglaw.com

To contact the editor responsible for this story:
John Hughes at jhughes@bloombergindustry.com
Keith Perine at kperine@bloomberglaw.com