Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C

Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554

In the Matter of ) ) Unlicensed Use of the 6 GHz Band ) ET Docket No. 18-295 ) Expanding Flexible Use in Mid-Band ) GN Docket No. 17-183 Spectrum Between 3.7 and 24 GHz )

OPPOSITION OF NCTA – THE INTERNET & TELEVISION ASSOCIATION TO PETITIONS FOR RECONSIDERATION

Rick Chessen Neal Goldberg Danielle J. Piñeres NCTA – The Internet & Television Association 25 Massachusetts Avenue, NW – Suite 100 Washington, DC 20001-1431 (202) 222-2445

July 29, 2020

TABLE OF CONTENTS

INTRODUCTION AND SUMMARY ...... 2 I. THE COMMISSION BASED ITS DECISION TO PERMIT UNLICENSED USE IN THE 6 GHZ BAND ON THOROUGH CONSIDERATION OF THE RECORD AND SOUND TECHNICAL ANALYSIS AND ACCORDINGLY ADOPTED APPROPRIATE PROTECTION MEASURES ...... 4 A. The Commission Should Reject FWCC’s Claims that It Failed to Take Sufficient Action to Protect Incumbents Against Harmful Interference ...... 5 B. FWCC Proposes Burdensome Measures to Address Its Harmful Interference Concerns that the Commission Already Considered and Properly Rejected and that Are neither Necessary nor in the Public Interest ...... 10 i. The Commission Correctly Decided Not to Codify an Unnecessary Activity Limit for LPI Devices ...... 11 ii. The Commission Considered and Declined to Mandate Testing Before LPI Devices Can Be Deployed ...... 13 II. THE COMMISSION SHOULD NOT RECONSIDER THE POWER LIMITS ADOPTED FOR STANDARD POWER OPERATIONS SUBJECT TO AFC ...... 15 III. THE COMMISSION’S DECISION NOT TO MAKE A PORTION OF THE 6 GHZ BAND AVAILABLE FOR LICENSED FLEXIBLE USE IS NOT ARBITRARY OR CAPRICIOUS OR CONTRARY TO THE PUBLIC INTEREST ...... 18 CONCLUSION ...... 20

Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554

In the Matter of ) ) Unlicensed Use of the 6 GHz Band ) ET Docket No. 18-295 ) Expanding Flexible Use in Mid-Band ) GN Docket No. 17-183 Spectrum Between 3.7 and 24 GHz )

OPPOSITION OF NCTA – THE INTERNET & TELEVISION ASSOCIATION TO PETITIONS FOR RECONSIDERATION

NCTA – The Internet & Television Association (NCTA) hereby opposes the petitions for

reconsideration of the Report and Order and Further Notice of Proposed Rulemaking adopted in

the above-captioned proceedings (6 GHz Order and 6 GHz FNPRM)1 that were filed by CTIA,2 the Fixed Wireless Communications Coalition (FWCC),3 and Verizon.4 For the reasons

explained below, the Commission should dismiss or deny each of these petitions.

1 Unlicensed Use of the 6 GHz Band; Expanding Flexible Use in Mid-Band Spectrum Between 3.7 and 24 GHz, Report and Order and Further Notice of Proposed Rulemaking, 35 FCC Rcd. 3852 (2020) (6 GHz Order). 2 Petition for Partial Reconsideration of CTIA, ET Docket No. 18-295, GN Docket No. 17-183 (filed June 25, 2020) (CTIA Petition). 3 Fixed Wireless Communications Coalition Petition for Reconsideration, ET Docket No. 18- 295, GN Docket No. 17-183 (filed June 25, 2020) (FWCC Petition). 4 Verizon Petition for Reconsideration, ET Docket No. 18-295, GN Docket No. 17-183 (filed June 25, 2020) (Verizon Petition).

INTRODUCTION AND SUMMARY

Wi-Fi is an indispensable way for American consumers’ “devices to interconnect and access the Internet.”5 As NCTA has explained, “Wi-Fi is an integral technology not just for

home and enterprise connectivity, but also for schools and libraries, ports and railyards, precision

agriculture and industrial automation.”6 The need for unlicensed spectrum for Wi-Fi and other unlicensed services has reached an inflection point. Additional unlicensed spectrum is essential to support new and innovative services, like Wi-Fi 6, that can benefit rural communities and communities of color, and to meet the voracious demand for Internet connectivity that is more important now than ever.7 By authorizing low-power indoor (LPI) unlicensed use throughout the full 1200 megahertz of the 6 GHz band, the Commission has taken a significant step to address this growing need.

However, in reaching this decision, the Commission also recognized the need to

“preserve and protect the important base of incumbent users in these frequency bands.”8 To this end, the Commission engaged in a lengthy process to carefully evaluate the feasibility of opening the 6 GHz band for unlicensed use while protecting those incumbent users – including the

5 Unlicensed Use of the 6 GHz Band; Expanding Flexible Use in Mid-Band Spectrum Between 3.7 and 24 GHz, Notice of Proposed Rulemaking, 33 FCC Rcd. 10496, ¶ 3 (2018) (6 GHz NPRM). 6 Letter from Danielle J. Piñeres, NCTA, to Marlene H. Dortch, Secretary, FCC, ET Docket No. 18-295, GN Docket No. 17-183, at 2 (filed Mar. 12, 2020) (NCTA Mar. 12 Letter). 7 See 6 GHz Order ¶¶ 1-2; Letter from Rob Alderfer, Vice President of Technology Policy, CableLabs, et al., to Marlene H. Dortch, Secretary, FCC, ET Docket No. 18-295, GN Docket No. 17-183, at 1 (filed Mar. 25, 2020); see also Remarks of Commissioner Geoffrey Starks, Thriving While Black: The Role of the Media and Communications Technology in Addressing Black Mental Health via Teleconference, July 13, 2020 (underscoring the need to extend telecommunications services to Black communities). 8 6 GHz NPRM ¶ 2.

important video production operations of NCTA’s own members – from harmful interference.

After thorough and considered analysis of the record, which includes numerous comments and detailed technical studies, the Commission adopted a framework in the 6 GHz Order that reasonably accounts for the interests and concerns of the various stakeholders. As a result, consumers in urban, suburban, and rural communities across the country will soon be able to reap the many benefits of next-generation unlicensed technologies, operating alongside incumbent users who will be fully protected from harmful interference.9

Now three petitioners – CTIA, FWCC, and Verizon – seek to delay or disrupt unlicensed

access to this critical spectrum and all the innovation it has the potential to unleash. Under the

Commission’s rules, petitions for reconsideration do not warrant the Commission’s consideration

if they “[r]ely on arguments that have been fully considered and rejected by the Commission

within the same proceeding” or “[f]ail to identify any material error, omission, or reason

warranting reconsideration.”10 Moreover, a petition for reconsideration that relies on new facts

or arguments not previously presented to the Commission may be granted only if those facts or arguments (1) relate to circumstances or events that changed or occurred after the last

opportunity to present them to the Commission; (2) were unknown to the petitioner until after

9 See, e.g., Comments of the Public Interest Spectrum Coalition, ET Docket No. 18-295, GN Docket No. 17-183, at 2 (filed June 29, 2020); Letter from Access Humboldt, Amazon, American Library Association, Apple, Benton Foundation, Boingo, Broadcom, Charter, Cisco, Comcast, Consortium For School Networking, Consumer Action for a Strong Economy, Cypress Semiconductor, Engine, Extreme Networks, Facebook, Google, HP, HP Enterprise, Institute for Liberty, Juniper Networks, Kent County, Maryland, Microsoft, NCTA, Netgear, Open Technology Institute – New America, Public Knowledge, Qorvo, SHLB – Schools, Health & Libraries Broadband Coalition, Tribal Digital Village Network, Wireless Internet Service Providers Association, and Wi-Fi Alliance, to Marlene H. Dortch, Secretary, FCC, ET Docket No. 18-295, GN Docket No. 17-183, at 1-2 (filed Feb. 11, 2020) (Big Tent Letter). 10 47 C.F.R. § 1.429(l)(1), (3).

such opportunity upon the exercise of ordinary diligence; or (3) that the Commission determines must be considered in the public interest.11 As explained herein, the petitioners have failed to

satisfy the Commission’s requirements for reconsideration. Specifically:

 The Commission thoroughly considered FWCC’s assertions that LPI unlicensed operations would cause harmful interference to incumbent operations and determined that the potential for such interference to occur is negligible. FWCC’s additional technical analysis not only fails to disprove the Commission’s conclusions, but actually demonstrates that Wi-Fi and Fixed Service (FS) operations can successfully coexist.

 The Commission already has considered and rejected FWCC’s misguided requests to adopt an activity limit for LPI devices and to require additional testing to protect against harmful interference from LPI operations.

 The Commission likewise considered and rejected Verizon’s and CTIA’s proposal to raise power limits for standard-power devices subject to AFC. It would not be in the public interest to revisit this issue solely because Verizon and CTIA disagree with the Commission’s decision, especially as they have not explained how the increased power levels they propose would affect LPI devices’ ability to use the band.

 And the Commission fully considered and declined to adopt CTIA’s proposal (supported by Verizon) to license a portion of the 6 GHz band. In its petition, CTIA simply recycles points that it has previously advanced, which the Commission comprehensively addressed in the 6 GHz Order, and fails to identify any valid basis for reconsideration.

The Commission should therefore dismiss these requests for reconsideration or deny them on the

merits.

I. THE COMMISSION BASED ITS DECISION TO PERMIT UNLICENSED USE IN THE 6 GHZ BAND ON THOROUGH CONSIDERATION OF THE RECORD AND SOUND TECHNICAL ANALYSIS AND ACCORDINGLY ADOPTED APPROPRIATE PROTECTION MEASURES

FWCC seeks to revisit the Commission’s conclusion that permitting LPI unlicensed

operations will not result in harmful interference to fixed link incumbent operations and requests

that the Commission adopt additional requirements that it asserts are necessary to protect such

operations. But the Commission has already considered and rejected these arguments. The

11 Id. § 1.429(b)(1)-(3).

Commission’s “rules and precedent are clear that [the Commission] need not consider petitions for reconsideration . . . that merely repeat arguments . . . previously . . . rejected in the underlying order” or “[f]ail to identify any material error, omission, or reason warranting reconsideration.”12

FWCC revives arguments here that were made throughout the proceeding and is unable to

identify any material error, omission, or reason warranting reconsideration. Because FWCC’s

petition lacks a valid basis for the Commission to grant the requested reconsideration, the

Commission should dismiss or deny it.

A. The Commission Should Reject FWCC’s Claims that It Failed to Take Sufficient Action to Protect Incumbents Against Harmful Interference

FWCC asserts that the Commission erred in determining that LPI operations will not

cause harmful interference to fixed link operations in the 6 GHz band, but this claim is based on

arguments that the Commission has already considered and rejected.13 In requesting that the

Commission delay the effective date of the rules or mandate testing prior to deployment of LPI

devices14 – requirements that, as discussed below, the Commission fully considered and declined

to impose15 – FWCC resurrects the question of harmful interference from LPI devices that the

12 Updating the Intercarrier Compensation Regime to Eliminate Access Arbitrage, Order on Reconsideration, 35 FCC Rcd. 6223, ¶¶ 15, 18 (2020) (internal quotation marks omitted); 47 C.F.R. § 1.429(l)(1), (3). 13 Among other things, fixed link incumbents asserted that harmful interference may occur even if the probability of its occurrence is low, due in part to the sheer number of unlicensed devices expected to operate in the band, and “[u]tilities claim[ed] that their microwave links are used to monitor and control the power grid and must operate in near real-time to avoid system instability and power disruptions.” 6 GHz Order ¶¶ 115, 141 n.373. They also asserted that “the Commission’s rules generally prohibit the Commission from authorizing a service or type of unlicensed operation that can cause harmful interference, regardless of whether the probability of such interference is low.” Id. ¶ 146. 14 FWCC Petition at 8-12. 15 See infra Part I.B.ii; see also 6 GHz Order ¶ 177.

Commission already grappled with and decided in the rulemaking. FWCC’s petition fails to state a valid argument on which reconsideration could be granted.

First, the Commission correctly determined, based on a robust record and thorough analysis, that “fixed microwave links will have an insignificant chance of experiencing harmful interference from indoor low-power unlicensed operations.”16 The voluminous record generated

over the course of more than two and a half years contains numerous technical analyses studying

the potential for harmful interference to incumbent fixed link operations such as those used by

FWCC’s members.17 Despite assertions to the contrary, the Commission systematically

evaluated the arguments and analyses submitted by fixed link incumbents and provided reasoned

explanations for the decisions it made after consideration of their concerns.18 In doing so, it

evaluated and drew upon the analyses that rebutted many of the arguments that FWCC raises in

its petition.19 These robust technical analyses demonstrate that the probability of harmful

interference to incumbent fixed link operations under the framework ultimately adopted in the

6 GHz Order is at most negligible in even the worst-case scenarios.20 Ultimately, the

16 6 GHz Order ¶ 141. 17 See id. ¶¶ 15-16, App. E (listing approximately 100 technical studies submitted by commenters); see also, e.g., Letter from Rob Alderfer, Vice President of Technology Policy, CableLabs, et al., to Marlene H. Dortch, Secretary, FCC, ET Docket No. 18-295, GN Docket No. 17-183, at Attach. (filed Mar. 9, 2020); Letter from Apple Inc., Broadcom Inc., Cisco Systems, Inc., Facebook, Inc., Google LLC, Hewlett Packard Enterprise, Intel Corporation, Microsoft Corporation, NXP Semiconductors, and Qualcomm Incorporated, to Marlene H. Dortch, Secretary, FCC, ET Docket No. 18-295, GN Docket No. 17-183, at 2-14 (filed Feb. 28, 2020); Letter from Rob Alderfer, Vice President of Technology Policy, CableLabs, to Marlene H. Dortch, Secretary, FCC, ET Docket No. 18-295, GN Docket No. 17-183, at 1-2 (filed Dec. 20, 2019) (CableLabs Dec. 2019 Letter). 18 6 GHz Order ¶¶ 117-140. 19 See, e.g., id. ¶¶ 125-127, 137-138. 20 See id. at App. E (listing over 40 technical studies submitted by proponents of unlicensed operations); see also Letter from Elizabeth Andrion, Senior Vice President, Regulatory

Commission found the studies submitted by CableLabs to be “the best evidence in the record of the impact that unlicensed low-power indoor devices will have on incumbent operations” and concluded that those studies “demonstrate[] that such operations will not cause harmful interference.”21

In the course of evaluating the technical information on the record, the Commission also

specifically considered and rejected FWCC’s contention that the anticipated large number of

unlicensed 6 GHz devices would increase the likelihood of harmful interference to incumbents in

the band.22 In the 6 GHz Order, the Commission explained that “studies demonstrate that, under

realistic deployment scenarios (which of course will not occur immediately but over the course

of several years), large numbers of 6 GHz-capable devices do not alter our conclusions regarding

the risk of interference to 6 GHz [fixed] links.”23

Furthermore, while it correctly determined that there is no meaningful chance of harmful

interference, the Commission is not required to guarantee that harmful interference will never

occur.24 The actions the Commission took in the 6 GHz Order are consistent with its

“longstanding interpretation of [S]ection 301” to allow unlicensed operations in bands occupied

by other users so long as unlicensed devices “do[] not transmit[] enough energy to have a

Affairs, Charter Communications, et al., to Marlene H. Dortch, Secretary, FCC, ET Docket No. 18-295, GN Docket No. 17-183, at 2 & Attach. at 5 (filed Jan. 17, 2020) (stating that that there is only a “0.00014 chance that LPI Wi-Fi would cause the interference-to-noise power ratio (“I/N”) to exceed even a conservative -6 dB threshold for the links analyzed,” and that there would be no material impact to the five- and six-nines availability of these links). 21 6 GHz Order ¶ 120. 22 See FWCC Petition at 6. 23 6 GHz Order ¶ 141 n.373. 24 Letter from Danielle J. Piñeres, NCTA, to Marlene H. Dortch, Secretary, FCC, ET Docket No. 18-295, GN Docket No. 17-183, at 3-4 (filed Apr. 15, 2020) (NCTA Apr. 15 Letter).

significant potential for causing harmful interference.”25 The Commission “explicitly

acknowledg[ed] the reliability needs of licensed incumbents,”26 and, upon weighing the evidence

presented in the record, was “fully convinced that . . . fixed microwave links will have an insignificant chance of experiencing harmful interference from indoor low-power unlicensed

operations.”27 Nevertheless, the Commission adopted specific rules, including requirements

intended to prevent unlicensed LPI devices from being used outdoors, to further ensure that fixed

link incumbents are protected from any potential harmful interference from unlicensed LPI

devices.28 Thus, the Commission’s determination that the public interest would be served by

permitting unlicensed LPI operations in the band was well-supported by its analysis of technical

studies submitted in the record and made upon a sufficient evaluation of fixed link incumbents’

interference concerns.

Second, the bench testing results that FWCC submitted with its petition provide no basis

to reconsider the Commission’s determination regarding the potential for harmful interference from LPI devices operating in the 6 GHz band.29 The FWCC analysis does not reflect

operational or field system interactions and does not add anything substantively new to the

25 Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227, 234 (D.C. Cir. 2008) (internal quotation marks omitted). 26 Opposition of Apple Inc., Broadcom Inc., Cisco Systems, Inc., Facebook, Inc., Google LLC, Hewlett Packard Enterprise, Intel Corp., Microsoft Corp., NXP Semiconductors, Qualcomm, Inc., and Ruckus Networks, a Business Segment of CommScope to the Petition for Stay of APCO International, ET Docket No. 18-295, GN Docket No. 17-183, at 5-6 (filed June 4, 2020) (Apple Inc. et al. APCO Stay Opposition). 27 6 GHz Order ¶ 141. 28 See, e.g., id. ¶ 107. 29 FWCC Petition at 10-11; see also id. at Attach. A. FWCC submitted these test results for the first time after the 6 GHz Order was adopted, in its response filed on June 4, 2020 to APCO’s petition for stay. FWCC Filing in Support of Stay of APCO International, ET Docket No. 18-295, GN Docket No. 17-183, at Attach. A (filed June 4, 2020).

already extensive technical record. FWCC failed to account for real-world factors such as antenna orientation, likelihood of Wi-Fi operating co-channel with FS, and Wi-Fi activity factor.

Moreover, FWCC’s testing actually appears to support the Commission’s conclusion that LPI operations will not cause harmful interference to fixed link operations, as it shows that, despite introducing Wi-Fi operating at up to 1 W, the fixed link never dropped. As such, FWCC’s analysis does not demonstrate that coexistence between LPI operations and fixed link incumbent operations is infeasible and does not provide an adequate basis for reconsideration of the rules adopted in the 6 GHz Order.

Finally, as the Commission observed in the 6 GHz Order, the fact that fixed links operating in the 6 GHz band are used by “critical safety services” does not “impl[y] that [the

Commission’s] obligation regarding harmful interference . . . goes beyond what is enumerated in

[the Commission’s] rules.”30 When the Commission applies its harmful interference criteria in

its role as a policymaker, as it has done here, courts grant “the Commission’s expert decisions in

the area of spectrum policy . . . ‘the greatest deference.’”31 By engaging in a reasoned analysis

of the potential for harmful interference and adopting rules designed to prevent and mitigate

interference to incumbent fixed service operations, the Commission considered and addressed

the critical infrastructure and public safety concerns that FWCC identifies in its petition. The

30 6 GHz Order ¶¶ 144-145 (rejecting incumbents’ suggestions that a more stringent interference standard is appropriate when public safety communications are involved). 31 NCTA Apr. 15 Letter at 1-2 (quoting NTCH, Inc. v. FCC, 950 F.3d 871, 880 (D.C. Cir. 2020)) (internal quotation marks omitted); see also Am. Radio Relay League, 524 F.3d at 233 (“Where a ‘highly technical question’ is involved, ‘courts necessarily must show considerable deference to an agency’s expertise.’”) (quoting MCI Cellular Tel. Co. v. FCC, 738 F.2d 1322, 1333 (D.C. Cir. 1984)).

Commission’s conclusions in the 6 GHz Order are therefore entitled to “the greatest deference.”32

For these reasons, the Commission should dismiss or deny FWCC’s claims that it failed

to take sufficient action to protect incumbent operations against harmful interference from LPI

devices, as these claims fail to meet the standard for reconsideration.

B. FWCC Proposes Burdensome Measures to Address Its Harmful Interference Concerns that the Commission Already Considered and Properly Rejected and that Are neither Necessary nor in the Public Interest

FWCC contends that the Commission should adopt additional measures to ensure that

LPI operations do not cause harmful interference to fixed link operations. In particular, FWCC

argues that the Commission must adopt an average activity limit for LPI devices and mandate

testing before these devices can be deployed.33 The Commission has already considered and rejected each one of these measures in the 6 GHz Order; these contentions therefore do not meet

the standard for reconsideration and should be rejected.

At the outset, it is important to note that under the rules adopted in the 6 GHz Order, in conjunction with the existing Part 15 rules, the Commission and incumbent operators will be able to successfully address any harmful interference detection and mitigation concerns that may arise. The Commission’s Part 15 rules provide that unlicensed operators must not cause harmful interference to licensed operations and that unlicensed operators must cease operating a device causing harmful interference.34 The Part 15 rules also permit a licensee to enlist the assistance of

the Commission to resolve any instances of harmful interference and to directly contact the

relevant network operator to raise any interference concerns. Such concerns are routinely

32 Telocator Network of Am. v. FCC, 691 F.2d 525, 538 (D.C. Cir. 1982). 33 FWCC Petition at 4-12. 34 47 C.F.R. § 15.5(c).

resolved today under the existing process. Accordingly, the Commission’s decision not to adopt the additional measures these petitioners have proposed does not constitute a material error or omission and is consistent with the public interest.

i. The Commission Correctly Decided Not to Codify an Unnecessary Activity Limit for LPI Devices

FWCC contends that the Commission erred by failing to codify a 0.4 percent activity limit for LPI devices. FWCC asserts that codification of this activity limit is necessary because it corresponds to the activity level that was assumed in the CableLabs technical analyses upon which the Commission relied in concluding that LPI operations would not cause harmful interference to fixed link operations.35 As an initial matter, an activity limit was proposed prior

to the 6 GHz Order’s adoption.36 CableLabs responded to this idea, explaining that “it is

important to maintain flexibility for intensive, high-value uses, as seen in Wi-Fi networks today”

and an activity limit would undercut this flexibility.37 Additionally, the 0.4 percent factor in

CableLabs’ analysis represents a weighted average of real-world Wi-Fi activity, including

instances in which Wi-Fi actively transmits at a higher rate. Consequently, in the 6 GHz Order, the Commission ultimately agreed and declined to adopt an activity limit.38 The request was

fully considered and rejected and therefore does not meet the standard for reconsideration.

35 FWCC Petition at 4-7. 36 See, e.g., Letter form George Kizer, National Spectrum Management Association, to Marlene H. Dortch, Secretary, FCC, ET Docket No. 18-295, GN Docket No. 17-183, at 3 (filed Apr. 14, 2020); Letter from Michael P. Goggin, AT&T, to Marlene H. Dortch, Secretary, FCC, ET Docket No. 18-295, GN Docket No. 17-183, at 10-11 (filed Jan. 23, 2020). 37 Letter from Rob Alderfer, Vice President of Technology Policy, CableLabs, to Marlene H. Dortch, Secretary, FCC, ET Docket No. 18-295, GN Docket No. 17-183, at 2 (filed Feb. 14, 2020). 38 6 GHz Order ¶ 120.

Additionally, FWCC offers no support for the notion that the Commission is in some way bound to codify every assumption that underpins the technical analyses on which it relies in reaching a decision.39 The Commission regularly relies on technical analyses when adopting rules without codifying the assumptions underlying these studies, and thus has not committed a material error or omission here.

FWCC’s speculation that harmful interference could result if activity levels in the 6 GHz band increase beyond the levels assumed by CableLabs is also belied by the record. In the

6 GHz Order, the Commission explained that, “[w]hile Wi-Fi data transmission will likely

increase over time as new applications are developed, we expect that this will be counteracted in

the 6 GHz band by the availability of 160 MHz or wider channels which will allow more data to

be transmitted in a shorter period of time.”40 Because the activity level assumption that

CableLabs incorporated into its analyses was based on activity levels measured in the 5 GHz band, it was an appropriate proxy for the expected unlicensed activity level in the 6 GHz band.41

But, while unlicensed activity factors could increase over time as the Commission acknowledges, there is nothing to support FWCC’s contention that such an increase will inevitably or even likely pose a harmful interference concern to fixed link incumbents. And, as CableLabs observed, imposing an unnecessary requirement that limits the flexibility of LPI operations would constrain the innovation potential in the band, contrary to the public interest. Because there is no reason to believe that codification of an activity limit is necessary to prevent harmful

39 Id. 40 Id. 41 See CableLabs Dec. 2019 Letter at Attach. at 4-5. The Commission found this empirical average of 0.4 percent persuasive and relied upon it in several places in the 6 GHz Order. See, e.g., 6 GHz Order ¶¶ 101, 131, 161, 222.

interference, the Commission did not err in declining to adopt one. Accordingly, this aspect of

FWCC’s petition should likewise be dismissed or denied.

ii. The Commission Considered and Declined to Mandate Testing Before LPI Devices Can Be Deployed

The Commission fully considered and correctly rejected FWCC’s argument that the

Commission should mandate testing before LPI devices can be deployed. Unlicensed proponents have explained that imposing a testing mandate is unnecessary and would delay unlicensed access to the band, making such a mandate inconsistent with the public interest.

As acknowledged in the 6 GHz Order, fixed link incumbents, including FWCC, proposed that the Commission require device testing prior to the deployment of any unlicensed devices.42

The Commission has not historically required testing before authorizing unlicensed users to share with incumbents,43 and there is nothing unique to the 6 GHz band to justify the adoption of

a testing requirement in this context. In fact, unlicensed devices already must undergo rigorous

testing and certification processes to ensure that they comply with the Commission’s rules. Once

those processes are complete, further testing of LPI devices as a precondition to operation would ultimately delay consumer access to new technologies and be unnecessarily burdensome and expensive. Mandating testing for LPI operations, or, as FWCC alternatively proposes,

42 6 GHz Order ¶ 177; see also Letter from Donald J. Evans & Seth L. Williams, Counsel to FWCC, to Marlene H. Dortch, Secretary, FCC, ET Docket No. 18-295, GN Docket No. 17- 183, at 3-4 (filed Apr. 13, 2020). 43 See generally Authorization of Spread Spectrum and Other Wideband Emissions not Presently Provided for in the FCC Rules and Regulations, First Report and Order, Gen. Docket No. 81-413, FCC 85-245 (rel. May 24, 1985); Amendment of the Commission’s Rules to Provide for Operation of Unlicensed NII Devices in the 5 GHz Frequency Range, Report and Order, 12 FCC Rcd. 1576 (1997); Revision of Parts 2 and 15 of the Commission’s Rules to Permit Unlicensed National Information Infrastructure (U-NII) Devices in the 5 GHz Band, Report and Order, 18 FCC Rcd. 24484 (2003).

postponing the effective date of the Commission’s rules, would only serve to delay unlicensed access to much-needed 6 GHz spectrum that is “critical to Wi-Fi 6, 5G, and rural broadband deployment and to provide a home for the next generation of unlicensed innovations.”44 As discussed above, the Commission has thoroughly vetted coexistence between LPI and fixed link incumbent operations and determined that it is feasible.

Moreover, the Commission considered and expressly declined to mandate “general device testing as a gating criterion for devices before they begin operating in the 6 GHz band,” noting that it “do[es] not expect widespread availability of 6 GHz unlicensed devices immediately.”45 Information submitted by interested parties confirms that widespread

deployment of 6 GHz-capable devices will not occur on the very day the 6 GHz rules take

effect.46 Accordingly, the Commission should dismiss or deny this aspect of FWCC’s petition

too, as having been fully considered and addressed in the 6 GHz Order and inconsistent with the public interest.

44 Big Tent Letter at 2; see also Letter from Elizabeth Andrion, Senior Vice President, Regulatory Affairs, Charter Communications, Inc., to Marlene H. Dortch, Secretary, FCC, ET Docket No. 18-295, GN Docket No. 17-183, at 1 (filed Mar. 16, 2020) (“[A]llowing unlicensed users to share this valuable spectrum would quickly give consumers access to better broadband and unleash tremendous innovation and economic growth.”). 45 6 GHz Order ¶ 177. 46 Due to “the several additional regulatory and other procedural steps that must occur before 6 GHz RLAN devices can be sold,” “indoor access points . . . will . . . not become commercially available the moment the Commission’s rules go into effect” and “there is simply no historical precedent for the immediate sale of millions of devices to consumers the moment they are authorized by the Commission.” Apple Inc. et al. APCO Stay Opposition at 3-4; Opposition to Petition for Stay of APCO International of Wi-Fi Alliance, ET Docket No. 18-295, GN Docket No. 17-183, at 8-9 (filed June 4, 2020).

II. THE COMMISSION SHOULD NOT RECONSIDER THE POWER LIMITS ADOPTED FOR STANDARD POWER OPERATIONS SUBJECT TO AFC

Verizon and CTIA have requested that the Commission increase the maximum EIRP and corresponding conducted power limit permitted for standard-power unlicensed operations subject to AFC.47 Although the Commission has raised in the 6 GHz FNPRM the question of whether to

increase power limits for AFC-controlled fixed point-to-point operations,48 it fully considered

and definitively determined in the 6 GHz Order the appropriate power limits for all other

unlicensed standard-power operations in the band. The petitioners have offered no new

rationale, facts, or material change in circumstances to justify reconsideration, and instead are

attempting to relitigate their arguments from the underlying proceeding for raising the power

limits for this class of devices.49 As the Commission has explained, “do[ing] little more than

disagree[ing] with [the Commission’s] analysis, judgments and policy choices . . . absent new

facts and arguments, is insufficient grounds for granting reconsideration.”50 Verizon and CTIA

also have not provided an adequate public interest rationale for reconsideration of their proposal,

47 Verizon Petition at 2-5; CTIA Petition at 6. While CTIA generally requests that the Commission should “allow power levels greater than 36 dBm for unlicensed operations that are under the control of an AFC system,” Verizon proposes specific revised limits – 42 dBm for maximum EIRP and 36 dBm for maximum conducted power. CTIA Petition at 6; Verizon Petition at 3. 48 6 GHz Order ¶ 232. 49 See generally CTIA Petition; Verizon Petition. In response to the 6 GHz NPRM, CTIA and Verizon both argued that the Commission should raise the power limits for standard-power devices generally. See, e.g., Reply Comments of Verizon, ET Docket No. 18-295, GN Docket No. 17-183, at 18-19 (filed Mar. 18, 2019); Comments of CTIA, ET Docket No. 18- 295, GN Docket No. 17-183, at 20 (filed Feb. 15, 2019); Comments of Verizon, ET Docket No. 18-295, GN Docket No. 17-183, at 10-11 (filed Feb. 15, 2019). 50 In re Broadwave USA, Fourth Memorandum Opinion and Order, 18 FCC Rcd. 8428, ¶ 49 (2003).

which should address at a minimum how raising power limits will affect LPI users that will share the same spectrum. The Commission should therefore reject their attempt to relitigate this issue.

As Verizon acknowledges,51 the Commission declined, upon careful consideration of the

record, to adopt the power limit increase that Verizon proposed.52 Contrary to Verizon’s

assertion that the Commission merely made “generic references to the record as a whole,”53 the

Commission clearly explained in detail its rationale in making this decision. Specifically, the

Commission found that adopting the rules for standard power operations set forth in the 6 GHz

Order “will protect incumbent fixed microwave, radio astronomy, and fixed-satellite operations, add much needed capacity to meet the rapidly increasing demands of the wireless industry, and promote innovation and investment in new wireless unlicensed technologies.”54 Moreover, it

determined that adopting higher power limits for standard-power operations was not warranted

because such power limits would “increase[] the range at which harmful interference to

incumbent users in the bands could potentially occur.”55

Furthermore, while the Commission found that it is appropriate to consider further

whether to raise these power limits for fixed point-to-point devices, it declined to do the same for

other standard-power devices.56 In reaching this conclusion, the Commission explained that,

“[a]s a threshold matter, . . . any flexibility provided for higher power should be used for targeted applications that would benefit from point-to-point operations, such as backhaul, and not for

51 Verizon Petition at 3. 52 6 GHz Order ¶ 22 & tbl. 3. 53 Verizon Petition at 3. 54 6 GHz Order ¶ 22. 55 Id. ¶ 188. 56 Id. ¶ 252.

point-to-multipoint use or as a scheme for providing more wide area service through multiple antennas aimed to cover larger areas.”57

Nor have Verizon and CTIA shown why reconsideration of standard power limits would

be in the public interest. First, they do not address how raising the power limits for this class of

devices will affect LPI users that would share the same spectrum. The current rules balance

operating power across the two device classes – standard power and LPI – such that they can

coexist reasonably well in the real world, given building entry loss. Adopting the higher

standard power limits proposed by Verizon and CTIA would widen the gap between the two

classes’ respective power limits, upsetting that balance. Although LPI devices will operate in the

band on an unlicensed basis under the Commission’s Part 15 rules, and thus are not protected

from interference, if the Commission were to create a situation where standard-power unlicensed

operations could render the band unusable for LPI operations, it would jeopardize its broader

objectives for this proceeding and undermine the benefits it hoped to achieve in authorizing LPI

operations in the first place.58 Moreover, without further study of this issue, raising the power

limits would create uncertainty for LPI operations that could depress investment and innovation potential in the band and result in underutilization.

Ultimately, because they merely reiterate arguments that the Commission has already addressed and rejected, and fail to demonstrate that adopting their requested change to the rules

57 Id. 58 Id. ¶ 3 (“The rules we are adopting [to permit LPI operations in the band] will also play a role in the growth of the IoT; connecting appliances, machines, meters, wearables, and other consumer electronics as well as industrial sensors for manufacturing.”); id. ¶ 98 (acknowledging that authorizing LPI operations will “create new unlicensed use opportunities in these bands—including optimizing the potential for deployment of next generation Wi-Fi that makes use of 160 MHz channels”).

is in the public interest, Verizon and CTIA have not met the Commission’s standard for reconsideration. The Commission should therefore dismiss or deny this aspect of their petitions.

III. THE COMMISSION’S DECISION NOT TO MAKE A PORTION OF THE 6 GHZ BAND AVAILABLE FOR LICENSED FLEXIBLE USE IS NOT ARBITRARY OR CAPRICIOUS OR CONTRARY TO THE PUBLIC INTEREST

In the 6 GHz Order, the Commission determined that “repurposing significant portions of the 6 GHz band for exclusive, flexible use licenses and relocating affected incumbent services to other frequency bands,” would frustrate its objectives of “creating significant new opportunities for unlicensed operations across the 6 GHz band” and “ensuring that existing incumbent services can continue to thrive.”59 In its petition, CTIA reiterates the very same purported international

harmonization and feasibility of relocation arguments that it made prior to the adoption of the

6 GHz Order. CTIA asserts that the Commission acted arbitrarily and capriciously by not

adequately considering the opportunity to license the upper portion of the band available for

flexible use.60 But CTIA offers no new arguments or facts in attempting to re-litigate this issue.

Nor does CTIA advance any valid public interest basis for doing so.61

First, CTIA’s claim that international trends support licensing a portion of the 6 GHz

band is simply inaccurate. As NCTA and others have explained, there is no plan to

59 Id. ¶ 203. NCTA and other parties have similarly refuted the notion that any portion of the 6 GHz band should be licensed. See, e.g., NCTA Mar. 12 Letter at 2; Letter from Louis Peraertz, Vice President of Public Policy, Wireless Internet Service Providers Association, ET Docket No. 18-295, at 9 (filed Feb. 26, 2020) (“[C]learing up to 700 megahertz of the band for exclusive licensing would preclude the coordinated, shared, higher power unlicensed operations that will lead to greater capacity, throughput and speeds to meet consumer demand in rural areas.”) (WISPA Letter). 60 CTIA Petition at 3. 61 See generally CTIA Petition.

internationally harmonize 6 GHz for exclusive, licensed mobile use.62 In fact, Ambassador

Grace Koh, U.S. Representative and Head of Delegation to WRC-19, noted that Region 2 (North and South America, Greenland, and some Pacific Islands) had “no interest in identifying

6 gigahertz for 5G,” and European countries showed minimal individual interest in doing so.63

Second, the record shows that relocation of 6 GHz incumbent operations to the 7/8 GHz federal government band, as CTIA has proposed, would be infeasible. As NCTA has explained, the Comsearch report upon which CTIA relies draws on Federal Government usage data that is

20-years out of date and fails to advance a relocation plan for, or include the costs of transitioning, a whole class of incumbent users that rely on the 6 GHz band today.64 Moreover,

CTIA’s relocation proposal likely would deny American consumers access to wireless

broadband services in the upper 6 GHz band for more than a decade.65

Drawing on a thorough discussion of these issues in the record, the Commission declined

to adopt CTIA’s proposal in the 6 GHz Order. “Most importantly,” the Commission explained,

providing “new opportunities for unlicensed operations across the entire 6 GHz band” will “help

address the critical need for . . . additional spectrum resources for unlicensed operations.”66 It

will also “enable use of wide swaths of spectrum, including several 160-megahertz . . . [and]

320-megahertz channels, which promotes more efficient and productive use of the spectrum,”

62 NCTA Mar. 12 Letter at 3-4; WISPA Letter at 3-8. 63 NCTA Mar. 12 Letter at 3. 64 Id. at 5-6. 65 Id. at 6-7. 66 6 GHz Order ¶ 205.

and will have the additional benefit of “help[ing to] create a larger ecosystem in the 5 GHz and

6 GHz bands for U-NII devices.”67

The public interest clearly favors making the entire 6 GHz band available for unlicensed

use by facilitating sharing with incumbents, rather than carving up the band and undertaking the

complex project of pursuing licensed use of the upper portion of the band as CTIA proposes.

The Commission should decline to reconsider this issue as well.

CONCLUSION

For all of the reasons identified above, the Commission should dismiss or deny the

petitions for reconsideration submitted by CTIA, FWCC, and Verizon.

Respectfully submitted,

/s/ Rick Chessen

Rick Chessen Neal Goldberg Danielle J. Piñeres NCTA – The Internet & Television Association 25 Massachusetts Avenue, N.W. – Suite 100 Washington, D.C. 20001-1431

July 29, 2020

67 Id.; see also Letter from Michael Calabrese, New America’s Open Technology Institute, to Marlene H. Dortch, Secretary, FCC, ET Docket No. 18-295, at 4-5 (filed Dec. 9, 2019) (explaining that CTIA’s proposal “would undermine the emerging 5G wireless ecosystem by crippling Wi-Fi 6” and “would make connectivity, particularly indoors for home and small business use, far less useful and more expensive than it would be under the Commission’s pending proposal”).

CERTIFICATE OF SERVICE

I, Stephanie Power, do hereby certify that on this 29th day of July, 2020, I caused a copy of the foregoing Opposition of NCTA to the Petitions for Reconsideration of Fixed Wireless

Communications Coalition and Verizon, and to the Petition for Partial Reconsideration of CTIA to be served via electronic mail on the following:

Jennifer L. Oberhausen Tamara L. Preiss Thomas C. Power Patrick T. Welsh Scott K. Bergmann William H. Johnson Kara Graves Verizon CTIA 1300 I Street, NW 1400 16th Street, NW Suite 500 East Suite 600 Washington, DC 20005 Washington, D.C. 20036 [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]

Donald J. Evans Seth L. Williams Fletcher, Heald & Hildreth, PLC 1300 N. 17th Street Suite 1100 Arlington, VA 22209 [email protected] [email protected] Counsel for Fixed Wireless Communications Coalition

/s/_Stephanie Power______Stephanie Power