Update on New FCC Spectrum Rules: Why APCO is suing the FCC

By Jeff Cohen

Last year, I wrote a blog titled “New FCC Spectrum Rules Put Public Safety Communications at Risk.” As I explained, the FCC adopted new rules to allow Wi-Fi routers to freely operate throughout a major spectrum band that is heavily relied upon by public safety agencies for “microwave” communications. APCO and other parties protested and asked the FCC to repeal the new rules. Unfortunately, the FCC rejected our requests. Now, I’m writing with an update to describe APCO’s decision to sue the FCC in federal court to reverse the new rules and where things stand.

A Quick Refresher on 6 GHz Spectrum

The 6 GHz spectrum band is the backbone of emergency communications throughout the country. Think of it as a system of major highways connecting public safety networks and agencies to each other. For example, 6 GHz links are used to transmit 9-1-1 dispatch information to fire stations, and to connect public safety land mobile radio communications towers, linking first responders to each other. 6 GHz links span many miles and thus are key to supporting communications in remote areas where there are few, if any, alternatives.

To give you an idea of how pervasive public safety use of the band is, here’s a view of the public safety microwave links in my home state of Virginia:

All across the country, 6 GHz links hum every minute supporting communications for 9-1-1 centers and first responders. If there’s interference to 6 GHz systems, communications critical to the safety of life are put at risk. For decades, public safety has relied upon this band, which is subject to careful prior frequency coordination and intended for extreme reliability. In fact, these links are designed to prevent interruptions longer than 30 seconds per month, with some not tolerating more than 30 seconds of downtime per year. It is this reliability that makes the spectrum so important for public safety.

What the FCC Did

In April 2020, the FCC changed the spectrum rules. Whereas before, using 6 GHz spectrum generally required a formal license from the FCC (making it relatively straightforward to avoid and resolve interference), now the entire band is available for unlicensed use by devices like Wi-Fi routers. What motivated this drastic change? Some tech companies say they need more spectrum to support Wi-Fi and other consumer electronics. Since spectrum is a finite natural resource, attention has turned to ways to share spectrum presently in use with new applications. Proponents of Wi-Fi and 5G products and services turned their eyes to the 6 GHz band.

As a general matter, APCO is not totally against having public safety share spectrum with other users, in the interests of helping to promote overall spectrum efficiency. But APCO has been clear that any mechanism to be deployed to share public safety spectrum must be tested and proven to work in advance. That is an entirely reasonable position to hold, given the potential harm to public safety if something were to go wrong or not work as expected. Spectrum sharing technologies are nascent and up to this point haven’t been applied to public safety bands.

In addition to requiring spectrum sharing technologies to be proven to work before they’re used in the real world, APCO has held another entirely reasonable stance: even if proven effective in advance, no sharing mechanism will be reliable enough to completely prevent interference. And when it comes to public safety, you just can’t take unnecessary risks. So, in addition to a successfully-tested-in-advance spectrum sharing technology being used to prevent interference, there needs to be an additional mechanism to detect, identify, and eliminate interference that does occur.

Unfortunately, despite APCO’s repeated advocacy in support of these two entirely reasonable propositions, the FCC declined to require testing in advance, and did not adopt any additional protective measures. Making matters worse is that the new uses being introduced into the 6 GHz band are of the kind that will be nearly impossible to track or recall. There are going to be hundreds of millions, if not more, of these new “unlicensed” Wi-Fi and similar devices flooding the marketplace. They will be bought at consumer-oriented e-commerce and brick-and-mortar stores, and deployed throughout homes and businesses, freely transmitting over the same spectrum that public safety microwave systems use.

Suing the FCC

After APCO exhausted its remedies at the FCC, we made the decision to appeal the FCC’s order in the U.S. Court of Appeals for the D.C. Circuit. Filing a lawsuit was a drastic step. This isn’t the first time APCO has disagreed with an FCC decision, but this is a unique situation with a significant risk of irreversible harm to public safety. Indeed, multiple parties are suing the FCC over these rules.

Public safety users aren’t the only “incumbents” in this band that are threatened by the FCC’s decision. There are commercial operators like AT&T, electric utilities, and broadcasters that also use this band for their own specific purposes and filed suit. For the sake of efficiency, the Court ordered us all to join together and write a common brief to make our legal arguments.

While working with these other parties, it became clear that the potential impacts on public safety users are unique from the risks other parties face. APCO is the sole litigant that directly represents the 9-1-1 centers and police, fire, and EMS departments that depend on the 6 GHz band to literally save and protect lives. Even though the other parties have safety-related concerns, such as the potential problems of interference to electric utilities, APCO was responsible for making sure that the arguments being made to the court reflected the unique requirements of public safety.

What Happens Next?

Pursuant to a court-mandated timeline, the parties suing the FCC filed their primary legal brief in December. The FCC’s response is due in February.

Be on the lookout for interference. It’s important to note that, while APCO and others are suing the FCC to reverse the new 6 GHz rules, the FCC is already starting to allow the marketing and sale of new devices that will take advantage of the rules. Wi-Fi routers using the same spectrum as public safety agencies could soon be in any office, apartment, or house. Given the lack of FCC-backed protections, some experts have suggested that existing 6 GHz users take measurements of the spectrum environment now so it will be easier to demonstrate that interference is a result of the new unlicensed devices. This takes time, money, and in some cases resources that agencies don’t have. Hopefully, before too many of the new devices roll out we’ll get the court to force the FCC to adopt a better approach to prevent and eliminate interference before it’s too late.

Also, as part of a sweeping funding law, Congress recently expressed concern that the new 6 GHz rules could result in interference to incumbent users and harm critical communications infrastructure. In March, the FCC must deliver a report to Congress on its progress in “ensuring rigorous testing related to unlicensed use of the 6 gigahertz band.”

We will continue to vigorously pursue the court case, which will extend for many months into 2021, and we’ll seek the strongest possible interpretation of the FCC’s new obligation to ensure rigorous testing is performed to protect critical communications. We will also advocate in public safety’s best interests as the FCC explores additional rule changes that could further threaten public safety operations. In the meantime, we will also carefully monitor the introduction of new unlicensed devices for any signs of interference.

You can contact APCO’s Government Relations Office with any feedback by emailing [email protected].

About the TabletopX Blog

A “Tabletop Exercise,” often shortened as “TTX,” is a discussion-based exercise frequently used by emergency planners. Led by a facilitator using a planned scenario, TTX participants describe the actions they would take, and the processes and procedures they would follow. The facilitator notes the players’ contributions and ensures that exercise objectives are met. Following the exercise, the facilitator typically develops an after-action report and conducts a debrief discussion during which players and observers have an opportunity to share their thoughts, observations, and recommendations from the exercise without assigning fault or blame.

Many of the attributes of a TTX are the same we seek to promote in the discussion generated from our blog posts. The goal is to capitalize on the shared experiences and expertise of all the participants to identify best practices, as well as areas for improvement, and thus achieve as successful a response to an emergency as possible.

TabletopX blog posts are written by APCO’s Government Relations team and special guests.

New FCC Spectrum Rules Put Public Safety Communications at Risk

By Jeff Cohen

APCO recently filed two formal petitions with the FCC regarding a major change it made to regulations that govern the use of spectrum that is relied upon by public safety. One was a Petition for Reconsideration, urging the FCC to repeal the new rules and fix numerous problems; the other was a Petition for Stay, asking the FCC to prohibit anyone from taking advantage of the new rules while the Petition for Reconsideration is under review. Together, these petitions are just one step short of challenging the FCC’s rules in federal court. This is a rare move for APCO, but it was necessary given the real risk of irreparable harm to public safety.

How Did We Get Here?

In April, the FCC made a major change to its rules governing the 6 GHz band. The goal was to make more spectrum available for unlicensed use to support things like “next generation Wi-Fi.” To do this, the FCC decided to open up a large pool of spectrum in the 6 GHz band, which is predominantly used for licensed point-to-point microwave links. Several stakeholders, including multiple public safety organizations, voiced concerns with the FCC’s plan for sharing the 6 GHz band.

Public safety agencies extensively use the 6 GHz band for mission critical systems that support operational needs such as dispatching first responders and maintaining land mobile radio communications during incidents. Disruption to these systems could have dire consequences. Assistance to the public could be delayed. Law enforcement officers, emergency medical technicians, and firefighters might lack the ability to transmit emergency calls for assistance and other information essential for protecting life and property. Other current users of the 6 GHz band use links for coordination of railroad train movements, control of natural gas and oil pipelines, management of electric grids, and telephone service.

These microwave links require prior frequency coordination and an FCC license to operate, and they’re extremely dependable, on the order of 99.999% reliability or better (which means less than ~5 minutes of downtime a year). If the 6 GHz band becomes unreliable for mission critical communications, public safety agencies will not have good options. In the best-case scenario, public safety agencies would have to pay to switch to fiber connections or less suitable microwave links that would likely involve much higher costs (and it’s not clear that such options would even be available). That’s not fair to public safety, and there’s a way to share spectrum without so much risk.

In APCO’s advocacy to the FCC, we made clear that we weren’t completely opposed to the idea of public safety sharing spectrum with unlicensed users, provided that the spectrum sharing approach was thoroughly evaluated and proven effective before putting public safety communications at risk. That’s not what happened. In fact, the FCC adopted the new rules without directly addressing public safety’s concerns at all, which federal judges have said the FCC is required to do by law.

A High-Level Description of the FCC’s New Rules

The FCC’s new rules allow operation of unlicensed “standard power” and “low power” transmitters (“access points”). The expectation is that hundreds of millions of these devices would eventually be used for hotspot networks, rural broadband, and Wi-Fi routers in homes, schools, businesses, etc. The FCC established different rules for the two types of access points to reduce the likelihood of interference to licensed users like public safety.

For standard power devices, the ability to prevent interference depends on an automated frequency coordination (AFC) system’s ability to assign frequencies to unlicensed access points by defining exclusion zones that restrict transmissions in locations that could interfere with licensed users. The AFC is a relatively new concept that has never been used for sharing spectrum with public safety. One of APCO’s basic concerns has been that a new spectrum sharing tool like the AFC needs to be thoroughly tested before being launched for real-world use where there could be harm to public safety. This would be an entirely reasonable approach. Yet, before testing to prove this kind of spectrum sharing can work, the FCC decided to allow deployment of these new devices, and it’s not clear what testing requirements will ever be imposed. To make matters worse, there are several major gaps in the plan for how an AFC would work that make it unlikely that it will be able to prevent interference to public safety.

For low power devices, there wouldn’t even be an AFC that would attempt to prevent unlicensed access points from using the same frequencies being used by public safety. Instead, the FCC made a rule that these devices stay indoors, and the FCC assumes they’ll be too weak to cause interference. APCO expressed concern that nothing will prevent people from using these devices outdoors on balconies and rooftops, and even if the devices stay indoors, we don’t necessarily agree with the assumption that building walls and windows will prevent the signals from causing interference.

But there’s even a more fundamental problem with the entire FCC scheme. Instead of establishing requirements we would expect to ensure that interference caused to public safety is promptly identified and eliminated, the FCC abandoned this obligation in favor of only “encouraging” the very same unlicensed companies that are benefiting from the new rules to voluntarily address these key issues. When interference occurs, the only information available to public safety agencies will be that the microwave link has stopped providing the mission critical communications it was designed for. These systems are not designed to detect interference and are incapable of attributing it to a particular source. Attempting to identify the source(s) of interference is a long, resource-intensive, expensive process – particularly when dealing with unlicensed devices – and many questions remain regarding how to promptly eliminate interference after the source has been identified.

APCO raised many concerns during a formal public comment period and after the FCC released a draft of the rules it planned to adopt. For whatever reason – maybe the significant amount of debate on technical issues, maybe the intense pressure from companies like Apple, Facebook, Google, and Microsoft that were lobbying for the new rules – the Commission overlooked public safety.

If the rules move forward uncorrected, public safety will suffer irreparable harm. Protecting public safety communications will be more difficult every day that the rules are in effect, and eliminating the hundreds of millions of problematic devices after they have begun operating will be nearly impossible.

What Happens Next?

This is the beginning of what could be a very long process. Ideally, the FCC would immediately hit Pause on the new rules and rethink the approach to protecting public safety like APCO requested. The FCC also has the discretion to just deny APCO’s petitions. In either case, we will remain engaged and pursue a solution that meets the needs of public safety.

Remaining Vigilant

While we’ve been dealing with this problem in 6 GHz, we’ve also been monitoring a separate proceeding to address the 4.9 GHz band, which is a much smaller pool of spectrum that is dedicated to public safety. In 2018, the FCC proposed rule changes that would make the 4.9 GHz band more useful to public safety agencies in many ways, including making the band more flexible for microwave links. This was something APCO supported, along with other aspects of the proposal. We’ve been waiting for years for the FCC to revise its rules to make the 4.9 GHz band more useful for public safety. Unfortunately, there have been rumors that the FCC is considering reallocating this band, which would be a blow to public safety. If the 6 GHz band becomes less reliable, it will be even more important for public safety to have dedicated 4.9 GHz spectrum to turn to.

Expect to hear more about APCO’s efforts to protect public safety spectrum in the near future.

About the TabletopX Blog

A “Tabletop Exercise,” often shortened as “TTX,” is a discussion-based exercise frequently used by emergency planners. Led by a facilitator using a planned scenario, TTX participants describe the actions they would take, and the processes and procedures they would follow. The facilitator notes the players’ contributions and ensures that exercise objectives are met. Following the exercise, the facilitator typically develops an after-action report and conducts a debrief discussion during which players and observers have an opportunity to share their thoughts, observations, and recommendations from the exercise without assigning fault or blame.

Many of the attributes of a TTX are the same we seek to promote in the discussion generated from our blog posts. The goal is to capitalize on the shared experiences and expertise of all the participants to identify best practices, as well as areas for improvement, and thus achieve as successful a response to an emergency as possible.

TabletopX blog posts are written by APCO’s Government Relations team and special guests.

Quick Updates for the 2019 Annual Conference

By Jeff Cohen, Chief Counsel & Director of Government Relations

APCO’s Annual Conference and Expo is fast approaching.  We have the remaining program updates for the Cutting Edge Developments track to share.  APCO’s Government Relations Office chooses content for this track, and we make a habit of holding one or two sessions open as close to the conference as possible to make sure we’re delivering truly “cutting edge” content.  The new sessions include:

  • The Role of Social Media in Crisis Communications for the ECC
    Sunday, August 11, 10:45 a.m. – 11:45 a.m.
    Hear from the director of the Washington, D.C., Office of Unified Communications Karima Holmes as she discusses the use, benefits, and impacts of social media in Emergency Communications Centers and strategies for executing social media crisis communications and navigating its challenges and limitations.
  • Legislative and Regulatory Issues Impacting APCO Members
    Monday, August 12, 2:00 p.m. – 3:00 p.m.
    APCO’s Senior Counsel Mark Reddish will provide an overview of three legislative/regulatory issues: the 9-1-1 SAVES Act, the Next Generation 9-1-1 Act of 2019, and 9‑1-1 location accuracy, and a panel of 9-1-1 directors will share their views of the real-world impacts.
  • Android ELS: Locating Emergency Calls in a Wireless World
    Monday, August 12, 4:30 p.m. – 5:30 p.m.
    Representatives from Google will discuss improvements to wireless 9-1-1 location accuracy, and how Android Emergency Location Service is delivering more accurate location, both indoors and outdoors, to ECCs.

I can also provide a little more detail on two of my own presentations.  In the Exhibit Hall Presentation Theater on Monday, August 12, 10:30 a.m. – 11:00 a.m., I’ll be providing brief updates on APCO’s top legislative priorities, including reclassifying public safety telecommunicators as “protective service occupations” and securing significant federal funding for NG9-1-1. And for the Cutting Edge track session, “The Ground Truth: Perspectives of 9-1-1 center leaders facing the challenges of evolving technology” (Wednesday, August 14, 10:15 a.m. – 11:15 a.m.), I will have the honor to be joined by:

  • Captain Scott Brillman, Director, City of Baltimore 9-1-1
  • Jason Kern, Executive Director, Southeast Emergency Communications (IL)
  • Maureen Will, Director of Communications, Newtown Emergency Communications Center (CT)
  • Captain Jeremy Hill, Co-Manager and Fire Captain, Amarillo Emergency Communications Center (TX)
  • Daniel Dunlap, 911 Director, Augusta 911 Center (GA)

The annual FCC update in the Cutting Edge track (Tuesday, August 13, 2:45 p.m. – 3:45 p.m.) will benefit from being a short drive from FCC headquarters.  A number of staff from the Public Safety and Homeland Security Bureau will be on hand to give an overview of the Bureau’s work on 9-1-1, emergency alerts, and spectrum issues:

  • David Furth, Deputy Chief
  • Michael Wilhelm, Division Chief, Policy and Licensing
  • Chris Anderson, Division Chief, Operations and Emergency Management
  • Austin Randazzo, Division Chief, Cybersecurity and Communications Reliability
  • John Evanoff, Deputy Division Chief, Policy and Licensing
  • Elizabeth Cuttner, Staff Attorney, Policy and Licensing
  • Nellie Foosaner, Staff Attorney, Policy and Licensing

APCO will also continue the tradition of hosting senior federal government officials throughout the event, which is key because it demonstrates their commitment to understanding and supporting our members’ public safety mission. During the Distinguished Achievers Breakfast, attendees will hear from FCC Chairman Ajit Pai and FirstNet Chair Ed Horowitz, and the Food for Thought Luncheon will feature remarks from FCC Commissioner Jessica Rosenworcel. Finally, as in past years, the Second General Business session will include updates from APCO’s partners at the FCC and DHS: Lisa Fowlkes of the FCC’s Public Safety Bureau, Ron Hewitt of DHS’s Cybersecurity and Infrastructure Security Agency, and John Merrill of DHS’s Science and Technology Directorate.

It’s going to be a great conference. You can click on this link to see the fill list of Cutting Edge Developments track sessions, and be sure to take a look at the new FirstNet track for recent speaker additions as well.

I hope to see you in Baltimore.

About the TabletopX Blog

A “Tabletop Exercise,” often shortened as “TTX,” is a discussion-based exercise frequently used by emergency planners. Led by a facilitator using a planned scenario, TTX participants describe the actions they would take, and the processes and procedures they would follow. The facilitator notes the players’ contributions and ensures that exercise objectives are met. Following the exercise, the facilitator typically develops an after-action report and conducts a debrief discussion during which players and observers have an opportunity to share their thoughts, observations, and recommendations from the exercise without assigning fault or blame.

Many of the attributes of a TTX are the same we seek to promote in the discussion generated from our blog posts. The goal is to capitalize on the shared experiences and expertise of all the participants to identify best practices, as well as areas for improvement, and thus achieve as successful a response to an emergency as possible.

TabletopX blog posts are written by APCO’s Government Relations team and special guests.