Critical Infrastructure Organizations Ask Court for Emergency Stay of FCC 6 GHz Rules
Tuesday, September 15, 2020 | Comments

Critical infrastructure and public-safety organizations filed two separate emergency petitions for a stay with U.S. Court of Appeals for the District of Columbia Circuit.

In May, the FCC approved new rules for the 6 GHz band that allow unlicensed use of the 6 GHz band. The FCC approved the new rules despite concerns from public safety and utilities that unlicensed use in the band could lead to interference for critical communications.

In June, the AT&T Services and the Edison Electric Institute (EEI) filed petitions for review with the U.S. Court of Appeals for the District of Columbia Circuit. Both the EEI and the Association of Public-Safety Communications Officials (APCO) filed petitions for a stay of the rules with the FCC, but the FCC denied them, arguing that it had used sound science in making its decisions and the stays would be not be in the public interest.

EEI, along with the Utilities Technology Council (UTC), the National Rural Electric Cooperative Association (NRECA) and the American Public Power Association (APPA) asked the D.C. court to temporarily stay the rules. APCO also filed an emergency petition for a stay.

”This action (the new rules) will soon lead to the sales of millions, if not billions, of unidentifiable and unrecallable 6 GHz devices operating at power levels that will compromise electric utilities’ wireless network,” the EEI petition said. “Whether the commission’s action was legal and proper is before the court on appeal.”

The organizations said that the temporary stay is critical to “avoid a catastrophic result while the legality of the commission’s action is litigated.”

The critical infrastructure organizations are specifically worried about the rules authorizing unlicensed indoor low-power devices without an automated frequency coordination system to mitigate interference.

“This action will soon lead to sales of millions, if not billions of unidentifiable radiating devices operating at levels that will destroy petitioners members’ ability to use their existing facilities,” the petition said.

The utilities argued that the FCC’s decision did not fully consider the risk that unlicensed devices bring to critical infrastructure operations that are critical to public welfare, that the decision “leapfrogged” a statutory mandate prohibiting interference within the band, that it ignored detailed real-world studies and that it “improperly relied on unrealistic and unverified theoretical simulations.”

The organizations argued that a stay while the appeals court considers the case is necessary because the potential for harm to their members is already high.

“The harms to petitioners’ members are imminent: 6 GHz chips and routers — precursors to device deployment — are already on the market, meaning that devices will soon follow,” the petition said. “Once the devices are deployed, these harms are irreversible; the order provides insufficient mechanisms to prevent devices from operating outdoors and lacks any procedure to identify, locate or eliminate devices causing interference.”

The petition argued that any disruption to their critical systems through interference could delay emergency response, cause interruptions in necessary utility devices and put health and welfare of the public at risk.

“The direct and consequential damage from widespread deployment of many millions of unregistered devices operating on an unlicensed and geographically unlimited and unidentifiable basis cannot be undone or controlled after the fact,” the petition said. “Petitioners and the public need not wait for disaster to strike (literally) to obtain a stay pending appeal.”

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