USCA Case #20-1216 Document #1861340 Filed: 09/14/2020 Page 1 of 33 ORAL ARGUMENT NOT YET SCHEDULED Nos. 20-1216 and 20-1272 (consolidated with Nos. 20-1190, 20-1274, 20-1281, and 20-1284) IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT EDISON ELECTRIC INSTITUTE, ASSOCIATION OF PUBLIC-SAFETY COMMUNICATIONS OFFICIALS INTERNATIONAL, INC., UTILITIES TECHNOLOGY COUNCIL, NATIONAL RURAL ELECTRIC COOPERATIVE ASSOCIATION, and AMERICAN PUBLIC POWER ASSOCIATION, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES OF AMERICA, Respondents. ON PETITIONS FOR REVIEW OF AN ORDER OF THE FEDERAL COMMUNICATIONS COMMISSION RESPONDENT FEDERAL COMMUNICATIONS COMMISSION S CONSOLIDATED OPPOSITION TO EMERGENCY MOTIONS FOR A STAY PENDING REVIEW The Federal Communications Commission ( FCC or  Commission ) opposes the emergency motions for stays pending review filed by the Association of Public-Safety Communications Officials International, Inc. ( APCO ) and by the Edison Electric Institute, Utilities Technology Council, National Rural Electric Cooperative Association, and American Public Power Association (collectively, the  Utilities ). USCA Case #20-1216 Document #1861340 Filed: 09/14/2020 Page 2 of 33 INTRODUCTION Americans rely on Wi-Fi for wireless broadband Internet connections in their work, school, and personal lives. Demand for wireless broadband continues to grow and its importance has surged during the COVID-19 pandemic, with schools and workplaces operating remotely via wireless connections to stable, high-speed Internet. In the Order under review, the FCC responded to Congress s call to address the growing demand for wireless broadband by acting to make 1,200 megahertz (MHz) of spectrum in the 6 gigahertz (GHz) band available for unlicensed use by Wi-Fi devices a move that will ease congestion and usher in a new generation of faster, better-performing Wi-Fi. See Report and Order and Further Notice of Proposed Rulemaking, Unlicensed Use of the 6 GHz Band; Expanding Flexible Use in Mid-Band Spectrum Between 3.7 and 24 GHz, FCC 20-51, 2020 WL 2013310 (rel. April 24, 2020) (Order). APCO and the Utilities represent incumbent licensed users of the 6 GHz band. See Order ¶ 16 & n.44. They fear that unlicensed use of the 6 GHz band will create harmful interference to their operations, which use  point-to-point microwave links to support their services. See id. ¶¶ 7, 16. But based on its expert judgment and thorough consideration of the administrative record, including the needs of public safety operations in the 6 GHz band, the Commission adopted rules that eliminated 2 USCA Case #20-1216 Document #1861340 Filed: 09/14/2020 Page 3 of 33 the risk of significant interference that APCO and the Utilities identified. See id. ¶¶ 23 86, 96 150. Given the ample safeguards against harmful interference that the Order established, APCO and the Utilities are unable to demonstrate that they are likely to prevail on the merits of their claims, and their supposed irreparable harms, in the face of those protections, are speculative and uncertain. In particular, APCO and the Utilities have no good evidence that 6 GHz devices which still need to be certified under FCC standards, distributed, and sold will pose any significant risk of harmful interference, especially before this Court can resolve their petitions in the ordinary course. On the other hand, a stay would unnecessarily forestall the significant benefits that the Order is poised to deliver to consumers and businesses nationwide. The motions for a stay should be denied. BACKGROUND Americans connect to wireless broadband Internet using Wi-Fi and other protocols for transmitting data wirelessly via radio waves. See Order ¶¶ 2, 4. Such wireless devices transmit across bands of the electromagnetic spectrum that the FCC has opened for unlicensed use. See id. ¶ 4. Until now, two bands of spectrum (at 2.4 GHz and 5 GHz) have carried the bulk of Wi-Fi and other unlicensed traffic in the United States. See Order ¶¶ 3, 229 n.602. Yet  demand for wireless broadband continues to grow at a phenomenal pace, as American citizens and businesses increasingly rely on Internet connectivity. Id. ¶ 6. To meet this growing 3 USCA Case #20-1216 Document #1861340 Filed: 09/14/2020 Page 4 of 33 demand, the FCC  continuously evaluates spectrum use with a goal  to enable more efficient usage, including through unlicensed operations. Id. Congress has also taken note of the problem and recently directed the Commission to  develop a national plan for making additional radio frequency bands available for unlicensed use. See RAY BAUM S Act, Pub. L. 115-141, § 618, 132 Stat. 348, 1112 (2018) (codified at 47 U.S.C. § 1508). Consistent with Congress s directive, in October 2018 the Commission  sought comment on how best to provide new opportunities for unlicensed use in the [6 GHz] band while also ensuring that licensed services that operate in the band continue to thrive. Order ¶ 11; see Notice of Proposed Rulemaking, Unlicensed Use of the 6 GHz Band, 33 FCC Rcd. 10,496 (2018). After reviewing an extensive record that included nearly 100 technical studies submitted by proponents and opponents of unlicensed operations in the 6 GHz band, see Order ¶¶ 15 16, Appendix E, the Commission adopted an order opening 1,200 MHz of spectrum in the 6 GHz band for more expansive unlicensed use. Among other things, the Commission explained that the newly available spectrum will ease congestion  so that businesses and consumers can take advantage of new data intensive applications, id. ¶ 2, and will lead to new and better-performing Wi-Fi by making available, for the first time, Wi-Fi channels with a 160 MHz size, id. ¶ 98. These new channels will allow market participants to  optimiz[e] the potential 4 USCA Case #20-1216 Document #1861340 Filed: 09/14/2020 Page 5 of 33 for deployment of next generation Wi-Fi, id., and  will allow more data to be transmitted in a shorter period of time, id. ¶ 120. When adopting the Order, the Commission paid careful attention to the concerns of incumbent licensed users of the 6 GHz band. Currently,  a variety of incumbent licensed services, including utilities and public safety agencies,  occupy different portions of the 6 GHz band. Id. ¶ 11; see id. ¶ 7. To protect these incumbents from harmful interference to their operations, the Commission permitted two types of unlicensed devices  standard-power and  low-power access points to operate in four sub-bands of the 6 GHz band. Id. ¶ 11. Within each of these sub-bands, the Commission  proposed to tailor unlicensed operation in a way that protects existing licensed operations. Id. ¶ 12; see id. ¶¶ 20 22. First, for standard-power devices operating in the 6 GHz band, the Commission established  exclusion zones where unlicensed devices cannot operate. Id. ¶ 22. Under the Commission s rules, standard-power devices will  only be permitted access to spectrum under the control of an Automated Frequency Coordination (AFC) system, id. ¶ 20, which will  protect incumbent fixed microwave operations by preventing standard power access points from operating where they could cause harmful interference, id. ¶ 22; see id. ¶ 12. As the Commission noted, commenters  generally acknowledge that a properly designed AFC system . . . will protect incumbent operations. Id. ¶ 23. 5 USCA Case #20-1216 Document #1861340 Filed: 09/14/2020 Page 6 of 33 Indeed, the Commission explained that it has successfully used the same approach in the past to protect television reception, satellite earth stations, and government radar operations in other spectrum bands. Id. Second, for low-power devices like common household Wi-Fi routers operating in the 6 GHz band, the Commission limited the permissible power levels, required a contention-based protocol,1 and limited access points to indoor locations. Id. ¶¶ 99 103. The Commission considered whether to impose an AFC requirement for low-power indoor devices as well, but concluded that such a requirement was unnecessary given the other safeguards that it had adopted against harmful interference. Id. ¶¶ 98 99. With these safeguards in place, the Commission found that  signals transmitted by these unlicensed devices will be significantly attenuated when passing through the walls of buildings, and that signal reduction will  prevent harmful interference from occurring to incumbents. Id. ¶ 100. To ensure that low-power devices remain indoors, the Commission adopted hardware requirements that  will make outdoor operations impractical and unsuitable. Id. ¶ 108. Low-power devices cannot be weather resistant, battery powered, or capable 1  A contention-based protocol allows multiple users to share spectrum by providing a reasonable opportunity for the different users to transmit. Order ¶ 101. For example, under one such protocol, the wireless station  listens to the wireless medium and if the medium is idle, the station may transmit; otherwise the station must wait until the current transmission is complete before transmitting. Id. 6 USCA Case #20-1216 Document #1861340 Filed: 09/14/2020 Page 7 of 33 of connecting to external antennas. Id. ¶ 107. In addition, low-power devices must be marketed  for indoor use only, and consumers will be advised via labels and user manuals that FCC regulations restrict the devices to indoor use. Id. In the unlikely event such a low-power device still manages to cause interference, the Commission emphasized that its Enforcement Bureau can investigate and take appropriate action, including by enforcing the Commission s rules against causing harmful interference to licensed incumbent operations. See id. ¶ 149. The Commission carefully reviewed and assessed the technical studies bearing on the potential for harmful interference to fixed microwave services from low-power indoor devices. Id. ¶¶ 112 50. Among those studies, the Commission addressed an analysis by the Critical Infrastructure Industry whose members include several electric utility organizations, including the petitioner Utilities in this case regarding  the potential impact of 6 GHz unlicensed use on the incumbent [utilities] and public safety providers that currently use the band. Id. ¶ 136. The Commission provided a detailed explanation for its conclusion that the study  has several critical flaws that make it  unreliable. Id. ¶ 138. In particular, the study assumes higher powers for indoor unlicensed devices than the adopted rules permit and makes several assumptions that do not reflect the realities of urban environments. See id. The Commission found that these flaws  significantly detract from the study s value and  lead to substantial errors. Id. 7 USCA Case #20-1216 Document #1861340 Filed: 09/14/2020 Page 8 of 33 By contrast, the Commission found  persuasive a study submitted by CableLabs that determined that the ratio of interference to noise power (I/N ratio) generated by low-power indoor devices would be below the -6 dB level that several 6 GHz incumbents including one of the Utilities petitioners advocated  as the appropriate metric for protecting against harmful interference. Id. ¶¶ 69, 117 18. Ultimately, however, the Commission found the CableLabs study  persuasive not because it reached a particular result, but  because it uses actual airtime utilization data for hundreds of thousands of Wi-Fi access points along with a statistical model for building entry loss. Id. ¶ 118. By using a  probability distribution, the CableLabs study  more accurately models the variability of the building loss than other studies that used only  a single number for building loss. Id. Even after AT&T raised concerns about the study, CableLabs  submitted additional simulation results using assumptions that  addresse[d] AT&T s concern but that still showed that  the I/N was less than -6 dB in all instances, as several 6 GHz incumbents advocated. Id. ¶ 119. After considering and rejecting other objections to the study, id. ¶¶ 120 22, the Commission concluded  that the CableLabs study is the best evidence in the record of the impact that unlicensed low-power indoor devices will have on incumbent operations and it demonstrates that such operations will not cause harmful interference. Id. ¶ 120 (emphasis added). A summary of the Order was published in the Federal Register on May 26, 8 USCA Case #20-1216 Document #1861340 Filed: 09/14/2020 Page 9 of 33 2020, see 85 Fed. Reg. 31,390-01 (May 26, 2020), and the Order became effective on July 27, 2020. APCO and one of the Utilities (Edison Electric Institute) asked the Commission to stay the Order in late May and mid-June, respectively.2 The agency denied those petitions on August 13, 2020, finding that both petitioners were unlikely to succeed on the merits, have not shown irreparable harm, and that a stay would harm the public interest and the interests of other parties. See Order Denying Petitions for Stay, Unlicensed Use of the 6 GHz Band; Expanding Flexible Use in Mid-Band Spectrum Between 3.7 & 24 GHz, DA 20-879, 2020 WL 4734883 (rel. Aug. 13, 2020) (Stay Denial Order). Now, several months after the Order was adopted and published, APCO and the Utilities seek an emergency judicial stay pending review of the rules permitting  unlicensed indoor device operation. Utilities Mot. 2 n.1; see APCO Mot. 13 16 (limiting its merits challenge to the Order s rules for  low-power devices ). 2 The remaining Utilities concede that they did not move the Commission for a stay. See Utilities Mot. 3 n.2. Because they have not shown that it would have been  impracticable for them to have moved for a stay before the Commission, their motion in this Court is improper. See Fed. R. App. P. 18(a). The remaining Utilities contend that this makes no difference because  their arguments before this Court, and the relief they seek, are coterminous with that of Edison Electric Institute. Utilities Mot. 3 n.2. But the Bornhoft declaration in support of the Utilities motion is submitted on behalf of one of the Utilities that did not seek a stay from the Commission, and the Court should therefore disregard that improper filing. See Utilities Ex. 4 ¶ 1. 9 USCA Case #20-1216 Document #1861340 Filed: 09/14/2020 Page 10 of 33 ARGUMENT A stay pending review is  extraordinary relief subject to  stringent requirements. Citizens for Responsibility & Ethics in Wash. v. FEC, 904 F.3d 1014, 1016, 1017 (D.C. Cir. 2018) (per curiam). Four traditional factors govern its issuance: (1) whether petitioners have  made a strong showing that they are  likely to succeed on the merits ; (2) whether petitioners  will be irreparably injured absent a stay ; (3) whether a stay  will substantially injure the other parties interested in the proceeding ; and (4) the  public interest. Nken v. Holder, 556 U.S. 418, 434 (2009). The first two factors  are the most critical, id., and the final two factors  merge where, as here,  the Government is the opposing party, id. at 435. APCO and the Utilities have not made the required showing on any of these factors: (1) they have not demonstrated any flaw in the Commission s expert technical judgment about the sufficiency of the safeguards it adopted against harmful interference by low-power indoor devices; (2) with those safeguards in place, movants claims that they will be injured by the operation of those devices is purely speculative; (3) third-party manufacturers that have plans to market low- power indoor devices will be injured if the Order s effectiveness is suspended; and (4) the public will be deprived of the substantial benefits that will flow from the added wireless capacity that the Order will make available. The motions should be denied. 10 USCA Case #20-1216 Document #1861340 Filed: 09/14/2020 Page 11 of 33 I. PETITIONERS HAVE NOT SHOWN THAT THEY ARE LIKELY TO SUCCEED ON THE MERITS. APCO and the Utilities claim that the Commission erred in failing to protect incumbent users of the 6 GHz band from harmful interference and by ignoring the Order s effect on public safety. Neither challenge is likely to succeed on the merits. A. The Commission Reasonably Found That Its Safeguards For Low-Power Devices Eliminate Any Significant Risk Of Harmful Interference To Licensed Users Of The 6 GHz Band. This Court has long recognized that the FCC s reliance on its expertise to resolve  highly technical question[s], including those surrounding the appropriate level of interference protections, deserves  considerable deference. Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227, 233 (D.C. Cir. 2008) (quoting MCI Cellular Tel. Co. v. FCC, 738 F.2d 1322, 1333 (D.C.Cir.1984)); see also Yale Broadcasting Co. v. FCC, 478 F.2d 594, 604 (D.C. Cir. 1973) ( interference is a  technical area[] in which the Court  must accord great deference ). In light of this deference and the reasonableness of the Commission s decision, the movants attacks on the Commission s expert technical judgment are unlikely to prevail. 1. The Communications Act creates a licensing regime for the nation s electromagnetic spectrum, 47 U.S.C. § 301, and empowers the Commission to  make reasonable regulations for devices that may cause  harmful interference to radio communications, id. § 302a(a). The Commission protects licensed incumbents from unlicensed operations by prohibiting  harmful interference, 47 11 USCA Case #20-1216 Document #1861340 Filed: 09/14/2020 Page 12 of 33 C.F.R. § 15.5(b), and requiring that unlicensed devices  cease operating . . . upon notification by a Commission representative that the device is causing harmful interference, id. § 15.5(c). In this context, the Commission defines  harmful interference as  [a]ny emission, radiation or induction that endangers the functioning of a radio navigation service or of other safety services or seriously degrades, obstructs, or repeatedly interrupts a radiocommunications service operating in accordance with this chapter. Id. § 15.3(m). Seizing on the word  endangers, id., APCO and the Utilities each argue that the Commission has an absolute obligation to prevent any risk of interference with their operations. See APCO Mot. 13; Utilities Mot. 11. But the ordinary meaning of  endangers does not support that rigid interpretation. In customary usage, to  endanger is  to bring into danger or peril of probable harm  not merely an abstract possibility of harm. See Webster s Third New International Dictionary 748 (1981) (emphasis added). Thus, in common usage, operations are not endangered unless harm is sufficiently likely. The Commission has long understood harmful interference in this way. As this Court has recognized, longstanding Commission precedent interprets the Communications Act to allow operation of an unlicensed device that  does not transmit enough energy to have a significant potential for causing harmful interference to licensed radio operators. Am. Radio Relay League, Inc., 524 F.3d 12 USCA Case #20-1216 Document #1861340 Filed: 09/14/2020 Page 13 of 33 at 234 (cleaned up and emphasis added) (citing FCC authority dating back to 1955). The Commission has explained that its  significant potential standard recognizes  practical realities about the telecommunications industry and accords with more than  70 years of  unlicensed operations authorized by the Commission under Part 15 of its rules. Order, Revision of Part 15 of the Commission s Rules Regarding Ultra-Wideband Transmission Systems, 19 FCC Rcd. 24,558, 24,589 ¶ 67 (2004). In applying this standard, the agency  considers the particular technical and operational parameters necessary to minimize the potential for harmful interference in each band of spectrum. Order ¶ 145. The Commission applied its  significant potential test for harmful interference in the Order. Id. In doing so, it reasonably rejected calls  to refrain from authorizing services or unlicensed operations whenever there is any possibility of harmful interference. Id. ¶146. As the Commission explained,  such a prohibition would rule out virtually all services and unlicensed operations, given that there is virtually no type of RF-emitting device that does not have the potential for causing such interference if used incorrectly. Id. (emphasis added). Instead, the Commission explained that, through rulemaking, it can  authorize operations in a manner that reduces the possibility of harmful interference to the minimum that the public interest  including public safety considerations  requires. Id. In this regard, the Commission emphasized that it  focus[es] on identifying and protecting 13 USCA Case #20-1216 Document #1861340 Filed: 09/14/2020 Page 14 of 33 against actual use cases, and not on  unrealistic or contrived situation[s] that might theoretically cause harmful interference, especially since avoiding even remote possibilities of harmful interference would leave  few or no opportunities for sharing between unlicensed devices and licensed services. Id. ¶ 150. Simply put, the  significant potential standard allows flexibility to address realistic threats while supporting innovation. Here, public safety concerns informed the Commission s conclusions about the amount of possible interference to tolerate, and the Commission then determined that its safeguards  eliminate[] any significant risk of harmful interference. Id. ¶ 146; see Part I-B, infra (describing the Commission s thorough consideration of public safety). It was eminently reasonable, and entirely consistent with the Communications Act and the Commission s regulations, for the Commission to adhere to its longstanding concern with operations that have a  significant potential for harmful interference. Order ¶ 145. 2. The Commission adopted three specific restrictions to ensure that low- power devices operating in the 6 GHz band would not cause harmful interference to incumbent users of the band. Order ¶ 99. First, the devices  must operate only indoors. Id. ¶ 100. As the Commission explained, indoor operation ensures that the signals transmitted by the devices will be  significantly attenuated when passing through the walls of buildings. Id. To 14 USCA Case #20-1216 Document #1861340 Filed: 09/14/2020 Page 15 of 33 ensure indoor operation, the Commission adopted three  equipment-related hardware requirements for such devices they cannot be  weather resistant, they cannot be capable of connecting to external antennas that might make their signals more likely to cause harmful interference, and they cannot be able to operate on battery power. Id. ¶ 107.3 Second, the devices must employ a  contention-based protocol that allows  multiple users to share spectrum by providing a reasonable opportunity for the different users to transmit. Id. ¶ 101.4  [T]he need to share spectrum with other devices, the Commission stated,  will limit the amount of time the low-power indoor device  will transmit, thereby  limit[ing] the time periods during which interference could potentially occur. Id. ¶ 102. Third, the Commission limited the  power levels at which the indoor devices are authorized to operate. Id. ¶ 103 (specifying a  maximum power spectral density and  maximum transmit power ). After a detailed examination of the voluminous evidence in the record, including nearly 100 technical studies, see 3 The Commission also directed that low-power indoor devices be marketed  for indoor use only, with a corresponding equipment label and statement in the device s user manual stating that  FCC regulations restrict to indoor use only. Order ¶ 107. 4 An example of such a protocol is the Institute of Electronic and Electrical Engineers (IEEE) 802.11 standard used by existing Wi-Fi devices. The IEEE 802.11 standard specifies that Wi-Fi devices  listen to the band on which they operate and transmit only when the band is free of other activity. Order ¶ 101. 15 USCA Case #20-1216 Document #1861340 Filed: 09/14/2020 Page 16 of 33 Order ¶¶ 112 43, the Commission determined that these restrictions  eliminate[] any significant risk of causing harmful interference. Id. ¶ 146. Finally, the Commission stated that  in the unlikely event that harmful interference does occur, the FCC s  Enforcement Bureau has the ability to investigate reports of such interference and take appropriate enforcement action as necessary. Id. ¶ 149. APCO and the Utilities disagree that the Commission s safeguards will protect against harmful interference to their operations. Their arguments are not likely to succeed on the merits. First, APCO and the Utilities complain that the Commission did not credit several studies in the record that purport to show harmful interference from low- power indoor devices. See APCO Mot. 14; Utilities Mot. 11 12. But the Commission addressed each of these studies and explained why it found them unpersuasive. The Commission explained that a study submitted by AT&T  exaggerate[d] the likelihood of interference by  treating only the building entry loss as a probabilistic quantity while not considering all other statistical quantities, Order ¶ 127, and that the same error was present in another study submitted by CTIA, see id. ¶ 133. The Commission found a third study, submitted by the Southern Company, unpersuasive  for a number of reasons, including use of an inappropriate radio propagation model and unrepresentative assumptions. Id. ¶ 135. And the Utilities own study was  unreliable due to  several critical flaws, 16 USCA Case #20-1216 Document #1861340 Filed: 09/14/2020 Page 17 of 33 including assumptions regarding outdoor operation and use of power levels that would not be permitted under the Order. Id. ¶ 138. Tellingly, neither APCO nor the Utilities attempt to rehabilitate these technical studies or show that the Commission was mistaken in identifying their flaws.5 Nor do APCO or the Utilities identify any errors in the Commission s reliance on a study by CableLabs, which the Commission found  persuasive and  the best evidence in the record of the impact that unlicensed low-power indoor devices will have on incumbent operations. Id. ¶¶ 118, 120. That study used  actual airtime utilization data for hundreds of thousands of Wi-Fi access points and a  statistical model for building entry loss that  more accurately models reality than other studies did. Id. ¶ 118. The CableLabs study s conclusion was clear: Low-power indoor operations  will not cause harmful interference, id. ¶ 120, even when judged against the standard that 6 GHz incumbents (including one of the Utilities petitioners) advocated. See id. ¶¶ 69, 117, 119. 5 The Utilities complain that in making its interference determination, the Commission did not conduct any  field test[s]. See Utilities Mot. 18. But the Commission had before it a wealth of studies directed to the issue of interference; it was not required to conduct a field test to supplement the already voluminous record. As the Commission s Office of Engineering and Technology explained in denying the movants requests for an administrative stay, the Commission  almost never conducts field tests  as a matter of course. Stay Denial Order ¶ 19. Instead, the agency relies on information submitted by commenters, who are better situated to tailor testing to their operations. Id. 17 USCA Case #20-1216 Document #1861340 Filed: 09/14/2020 Page 18 of 33 Second, APCO and the Utilities claim that the Commission s rules for discouraging outdoor use of low-power devices are  meaningless and  unexplained. Utilities Mot. 12; see also APCO Mot. 14 15. Not so. The Commission explained that its equipment-related limits on low-power indoor devices  will make outdoor operations impractical and unsuitable. Order ¶ 108. Specifically, because the devices cannot be  weather-resistant, outdoor operation would leave them at the mercy of the elements. Since they cannot connect to external antennas, they cannot connect to an outdoor antenna or a higher gain antenna that will increase their potential for harmful interference. And because they cannot operate on battery power, they will not be able to operate away from a wired power source. Finally, the Commission noted that it has previously prohibited outdoor operation of devices in other bands without incident, which further supports its determination that the even more comprehensive rules for indoor use it adopted in the Order will be effective  to discourage outdoor use. Id. ¶ 148. The Commission also reasonably declined to impose more stringent requirements, including the Utilities preference for GPS monitoring to determine whether a device is indoors. See Utilities Mot. 12. Record evidence persuaded the Commission that using GPS for this purpose was  impractical (since it would depend on the presence or absence of a GPS signal in a variety of situations), and the Commission was hesitant to impose a costly GPS requirement when  the 18 USCA Case #20-1216 Document #1861340 Filed: 09/14/2020 Page 19 of 33 effectiveness of this idea has not been demonstrated. Order ¶ 108. Third, APCO and the Utilities attack the Commission s conclusion that the Enforcement Bureau can effectively stop harmful interference once identified. See APCO Mot. 15; Utilities Mot. 13 14. As an initial matter, the Commission found that the safeguards it adopted  eliminate[] any significant risk that low-power indoor devices will cause harmful interference to licensed users. Order ¶ 146. But in the unlikely event that such interference were to occur, the Commission explained that its Enforcement Bureau field agents use  specialized spectrum monitoring equipment to pinpoint interference sources and to resolve claims of interference, including, if necessary, by working in conjunction with  entities at the federal, state, county, and local levels of government. See id. ¶ 149 & n.397. Once the harmful interference is identified, the operator must  cease operating the device upon notification by a Commission representative that the device is causing harmful interference, and operation of the device  shall not resume until the condition causing the harmful interference has been corrected. 47 C.F.R. § 15.5(c). The unsupported statements that the Enforcement Bureau will  struggle to rectify harmful interference, see APCO Mot. 15; Utilities Mot. 14, are insufficient to overcome the Commission s informed judgment that Bureau enforcement efforts will be effective given the very low risk of harmful interference in the first place. 19 USCA Case #20-1216 Document #1861340 Filed: 09/14/2020 Page 20 of 33 B. The Commission Adequately Considered And Addressed Public Safety Concerns. APCO and the Utilities each argue that the Commission unlawfully failed to consider the Order s effect on public safety. See APCO Mot. 8 13; Utilities Mot. 15 17. This argument is belied by the record, which reflects robust attention to the concerns raised by public safety entities. 1. The Commission discussed at length how its rules will  protect incumbent fixed microwave operations from the potential of harmful interference by standard- power devices, Order ¶ 23, as well as  prevent harmful interference from low- power devices, id. ¶ 99. The Commission expressly acknowledged that protected incumbent users of fixed microwave services include  utilities and  public safety agencies, which use  point-to-point microwave links to support their services in the 6 GHz band. Id. ¶ 7. The Commission s conclusion that its rules will  protect and  prevent against harmful interference with these fixed microwave links necessarily means that public safety will not be impaired. Id. ¶¶ 23, 99; see generally id. ¶¶ 23 86, 112 50 (discussing protections for fixed microwave services); see also Stay Denial Order ¶ 21 ( The microwave links used by public safety agencies must follow the same technical rules as those implemented by any other 6 GHz fixed service licensee and their links have the same technical characteristics as those used for other purposes, such as . . . management of electric grids. ). APCO stresses  that 6 GHz public safety operations are designed for 20 USCA Case #20-1216 Document #1861340 Filed: 09/14/2020 Page 21 of 33 99.9999% availability, APCO Mot. 9, but that does not differentiate public safety agencies from other fixed microwave users. In fact, the record before the Commission reflected that  fixed microwave links  like those used by public safety agencies and utilities are  typically designed to achieve 99.999% or 99.9999% reliability. Order ¶ 114. In other words, public safety fixed microwave links are  typical[] of other fixed microwave links. See id. The Commission s extensive findings about the safety of fixed microwave links apply with full force to APCO s members. See Stay Denial Order ¶ 21. And for their part, the Utilities likewise do not identify any basis to distinguish their fixed microwave links from those described in the Order. Moreover, the Commission was attentive to APCO s and the Utilities specific public safety concerns. For example, the Commission expressly noted  the importance of maintaining high link reliability for  [u]tilities and  public safety organizations. Id. ¶ 115 (citing comments by APCO and the Utilities). For another, the Commission explained in detail why it did not credit a study from the Critical Infrastructure Industry (which includes the Utilities) analyzing the supposedly harmful effects of low-power indoor devices on  public safety providers that currently use the [6 GHz] band. Id. ¶ 136 & n.350. As the Commission explained, that study had  several critical flaws that rendered it  unreliable, including multiple unsound or unjustified assumptions. Id. ¶ 138. In short, the Commission 21 USCA Case #20-1216 Document #1861340 Filed: 09/14/2020 Page 22 of 33 considered and found unpersuasive a technical study about the Order s potential effect on the public safety and utilities systems that the Commission recognized were important. That was not a failure to consider an important part of the problem; it was an informed, expert conclusion with which APCO and the Utilities simply disagree. Thus, contrary to the Utilities suggestion, the Commission did not  dismiss[] or ignore[] evidence that there would be harmful interference to public safety users of the 6 GHz band. See Utilities Mot. 17. Rather, after considering studies on both sides, the FCC determined that the safeguards it adopted would protect against harmful interference to all licensed users of the band, which include public safety users. Order ¶ 146. APCO acknowledges that the Commission cited APCO s comments  20 times, but tries to dismiss this  citation count as  irrelevant. APCO Mot. 12 13. That understates APCO s influence on the Order. Consistent with APCO s comments, the Commission required (1) use of the Commission s Universal Licensing System to establish exclusion zones for standard-power devices, id. ¶ 30; (2) geo-location capabilities for standard-power devices, id. ¶¶ 39 40; (3) standard-power device contact with an AFC system at least once per day, id. ¶ 46; (4) standard-power registration with the AFC system when requesting a list of available operating frequencies and power levels, id. ¶¶ 81 82; and (5) the capacity to deny spectrum access to a registered standard-power access point upon request by the Commission, in the event of harmful interference caused by a device, id. ¶ 83. 22 USCA Case #20-1216 Document #1861340 Filed: 09/14/2020 Page 23 of 33 And as urged by APCO, the Commission refused to permit higher power limits in rural areas. Id. ¶¶ 187 88. So, too, with the Utilities: The Commission adopted some of their recommendations and credited parts of their studies. See id. ¶ 76 (crediting a study by Edison Electric Institute); id. ¶ 83 (adopting a recommendation by Utilities Technology Council). The record is clear that the Commission took into account APCO s and the Utilities public safety concerns when crafting its rules to protect fixed microwave links. All told, the Commission thoroughly addressed concerns about harmful interference with fixed microwave systems. In doing so, the Commission was aware that public safety agencies and utilities use these systems, and the Commission carefully considered the concerns that these entities raised. APCO and the Utilities have not suggested here or before the Commission that their fixed microwave links operate differently from fixed microwave links more generally. Thus, the Commission s conclusion that all fixed microwave links are protected from harmful interference adequately addresses APCO s and the Utilities public safety concerns. 2. To refute this reality, APCO and the Utilities principally rely on this Court s decision in Mozilla Corp. v. FCC, 940 F.3d 1 (D.C. Cir. 2019). That reliance is misplaced. In Mozilla, the Court broadly upheld the FCC s departure from  utility-style regulation of the Internet and restoration of  a market-based,  light-touch policy. 23 USCA Case #20-1216 Document #1861340 Filed: 09/14/2020 Page 24 of 33 Id. at 17. During the Commission proceeding, public safety officials objected that a market-based approach that  allow[s] broadband providers to prioritize Internet traffic as they see fit, or to demand payment for top-rate speed, could imperil the ability of first responders . . . to communicate during a crisis. Id. at 60. The Court concluded that, in restoring a market-based approach, the Commission had not adequately explained the effects (if any) on public safety. See id. at 61 62. Mozilla is inapt because the Order here affirmatively adopted rules to prevent harmful interference with public safety services. The Order specifies clear requirements for standard- and low-power devices operating in the 6 GHz band, Order ¶¶ 23 86, 112 50, including requirements that public safety commenters supported, id. ¶¶ 30, 39 40, 46, 81 83. The Order here thus addresses the substance of the public safety concerns regarding the potential for harmful interference. Mere disagreement with the Commission s reasoning and policy judgment is not a ground for relief. II. PETITIONERS HAVE NOT SHOWN THAT THEY WILL SUFFER IRREPARABLE INJURY. APCO and the Utilities face a  high standard to show irreparable injury: The injury must be  both certain and great and  of such imminence that there is a clear and present need for relief. Mexichem Specialty Resins, Inc. v. EPA, 787 F.3d 544, 555 (D.C. Cir. 2015) (quoting Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006)). Neither APCO nor the Utilities satisfy that burden. 24 USCA Case #20-1216 Document #1861340 Filed: 09/14/2020 Page 25 of 33 Instead, they seek a stay based on  something merely feared as liable to occur at some indefinite time. Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (quoting Connecticut v. Massachusetts, 282 U.S. 660, 674 (1931)). That is inadequate to obtain the  extraordinary relief they seek. Citizens for Responsibility & Ethics in Wash., 904 F.3d at 1017. 1. APCO s and the Utilities claimed harms are wholly speculative. Specifically, their supporting declarations set forth what  may or  can occur, what  would happen in various hypotheticals, what they  fear, and the potential  risk of disruption. See APCO Ex. 4 ¶ 3, Ex. 5 ¶¶ 2, 3; Utilities Ex. 3 ¶ 7, Ex. 4 ¶¶ 5, 9,6 Ex. 5 ¶ 6. These harms are insufficient to establish an irreparable injury. See Citizens for Responsibility & Ethics in Wash., 904 F.3d at 1019 (no irreparable harm where claimed injuries  fail to rise beyond the speculative level ). More importantly, as the FCC has shown, APCO and the Utilities have no credible response to the Commission s finding that harmful interference is unlikely to occur. Indeed, their irreparable harm arguments simply rehash the same studies that they presented to the Commission and that the Commission found unreliable or 6 As explained in footnote 2, the Bornhoft declaration is procedurally improper because it is offered on behalf of a petitioner that did not seek a stay from the FCC. See Fed. R. App. P. 18(a). 25 USCA Case #20-1216 Document #1861340 Filed: 09/14/2020 Page 26 of 33 unpersuasive.7 See APCO Mot. 17 & n.5 (citing a study from Southern Company that the Commission found unconvincing  for a number of reasons, Order ¶ 135); Utilities Mot. 20 & n.11 (same).8 Neither APCO nor the Utilities explain why the Commission s reasoned rejection of this evidence is mistaken. There is simply no good evidence for the contention that low-power indoor devices much less  even one device  carry any significant likelihood of causing harmful interference under the Commission s rules. See APCO Mot. 17; Utilities Mot. 20. Even if harmful interference were more than a remote possibility, both of APCO s declarants state that  risk arises only if an approved device is  operating near one of the public safety agency s 6 GHz receivers. APCO Ex. 4 ¶ 3, Ex. 5 ¶ 3. There is no certainty that such operation will occur. And the consequences of the risk are likewise speculative; both declarants focus on what  may or  could happen in worst-case-scenario events, but it is entirely speculative that any worst case would materialize. See, e.g., APCO Ex. 4, ¶¶ 8, 10, 12, Ex. 5 ¶¶ 8, 10, 12. APCO and the Utilities rely on these worst-case hypotheticals to suggest that 7 APCO relies in part on a post-Order study purporting to show  alarming results that  confirm the threat to public safety. APCO Mot. 17 & n.6. The FCC s Office of Engineering and Technology explained that this untimely study has  a number of significant flaws and is not reliable evidence. Stay Denial Order ¶ 25. 8 The Utilities Kuberski declaration cites a further study by Exelon, see Utilities Ex. 5 ¶ 8, which the Commission likewise considered and discounted because it  ignore[s] many statistically significant factors, Order ¶ 134 & n.343. 26 USCA Case #20-1216 Document #1861340 Filed: 09/14/2020 Page 27 of 33 the Commission and this Court cannot accept any risk to their operations because a failure could be catastrophic. Ultimately, however, the Commission has  broad discretion in pursuing the public interest. FCC v. WNCN Listeners Guild, 450 U.S. 582, 594 (1981). Here, the Commission reasonably exercised that discretion to  eliminate[] any significant risk of causing harmful interference with public safety operations while avoiding a standard so strict that it  would rule out virtually all services and unlicensed operations. Order ¶ 146. The Commission balanced many competing considerations, but it did so in a way that the evidence shows will make harmful interference and, by extension, the movants hypotheticals nothing but a remote and abstract possibility. 2. Nor have APCO and the Utilities shown that the harm they fear is imminent. According to the Utilities, once 6 GHz devices are  deployed, there will be a  risk and a  possibility of harm to their systems. See Utilities Mot. 23. APCO likewise cites  risk that arises only once 6 GHz devices are on the market. See APCO Mot. 17. These barebones claims fall well short of establishing imminence. Both APCO and the Utilities sound the alarm about the effect of numerous low-power indoor 6 GHz devices on their operations. See APCO Mot. 16 17; Utilities Mot. 2 (fearing  millions, if not billions of devices). The Utilities own study predicted harmful interference only by  assum[ing] there is an access point for every man, woman, and child living in the Houston area, each watching a 4K video 27 USCA Case #20-1216 Document #1861340 Filed: 09/14/2020 Page 28 of 33 streaming service. Order ¶ 138. That unrealistic assumption was one of many reasons the Commission found the study  fundamentally flawed and unreliable. Id. And as device manufacturers have observed,  there is simply no historical precedent for the immediate sale of millions of devices on the timeframe that APCO and the Utilities imagine. Stay Denial Order ¶ 31. In short, the sale of 6 GHz devices at the level required for any likelihood of interference, even by the movants own lights, is highly unlikely any time soon. Although APCO and the Utilities respond that  6 GHz chips are already on the market, they admit that these chips are mere  precursors to consumer devices. See APCO Mot. 17; Utilities Mot. 5. The FCC has not even finalized the guidance for certifying such devices, which is a necessary prerequisite to their sale. See 47 C.F.R. §§ 2.803(b), 2.1033(b). It is implausible, given the evidence in the record, that 6 GHz devices will be produced, certified, distributed, and sold in sufficient quantities to create a significant potential for harmful interference before this Court can resolve the petitions for review in the ordinary course. There is no evidence that  widespread deployment of 6 GHz devices will reach  many millions  or any other critical threshold by any specific date, much less by a date so imminent that it calls for a stay pending review. See Utilities Mot. 19. Absent that evidence, harmful interference is  something merely feared as liable to occur at some indefinite time. Wis. Gas Co., 758 F.2d at 674. That is not enough 28 USCA Case #20-1216 Document #1861340 Filed: 09/14/2020 Page 29 of 33 to justify a stay. III. A STAY WILL DISSERVE THE PUBLIC INTEREST AND HARM THIRD PARTIES. Finally, a stay would not be in the public interest and would harm other interested parties. By contrast, the Order furthers the public interest by advancing the stated spectrum policy of the United States, easing congestion for consumers and businesses, and promoting innovation in devices that support wireless connectivity. 1.  The public policy of the United States, as  declared by Congress, is necessarily an important aspect of  the public interest. Cf. Retail Store Emps. Union v. FCC, 436 F.2d 248, 259 (D.C. Cir. 1970). By opening spectrum for new unlicensed operations, the Order advances the  policy of the United States . . . to promote spectrum policy that makes available on an unlicensed basis radio frequency bands to address consumer demand for unlicensed wireless broadband operations. 47 U.S.C. § 1507(a)(3). It also faithfully advances the Commission s obligation to  encourage the larger and more effective use of radio in the public interest. Id. § 303(g). Although there are countless ways to use spectrum, Congress has directed the Commission to make room for  unlicensed . . . operations where it can. See 47 U.S.C. § 1508. The Court should honor the Commission s compliance with that directive. 2. A stay also would adversely affect consumers and businesses nationwide. 29 USCA Case #20-1216 Document #1861340 Filed: 09/14/2020 Page 30 of 33 As this Court has acknowledged,  the use of wireless networks in the United States is skyrocketing, and  the country faces a major challenge to ensure that the speed, capacity, and accessibility of our wireless networks keeps pace with these demands. Nat l Ass n of Broadcasters v. FCC, 789 F.3d 165, 169 (D.C. Cir. 2015) (quotation marks omitted). The Order tackles this problem by easing  existing and anticipated congestion so that businesses and consumers can take advantage of new data intensive applications. Order ¶ 2. Relieving spectrum congestion  will provide economic benefits to the entire nation, with one report estimating that the Commission s new rules  will produce over $150 billion in economic value. Id. ¶ 229. The harms from congestion are even more serious  during the COVID- 19 pandemic, which has caused further  rising demand for consumer connectivity for work, school, and entertainment applications. Stay Denial Order ¶ 42. Innovative spectrum use is especially important here and now. Even if the number of unlicensed low-power 6 GHz devices is unlikely to reach millions or billions in the immediate future, the Order allows innovators to start the process of delivering some such devices to the market in a time when any relief is welcome. 3. Beyond these widespread harms, specific market participants will be harmed by a stay. Low-power indoor 6 GHz products cannot be brought to market without compliance testing with still-to-be adopted procedures from the Commission s Office of Engineering and Technology. Stay Denial Order ¶ 35. A 30 USCA Case #20-1216 Document #1861340 Filed: 09/14/2020 Page 31 of 33 stay would disrupt this process by sowing uncertainty about the ability of 6 GHz devices to go on the market, discourage investment in 6 GHz products, and  delay companies from receiving the benefit of the investment they have made. 9 See id. CONCLUSION The Court should deny the motions for a stay pending review and deny APCO s alternative request for a briefing schedule to which no other party has agreed. Dated: Se p t e mb er 1 4 , 2 0 2 0 Respectfully submitted, / s/ Adam G. Crews Thomas M. Johnson, Jr. General Counsel Ashley S. Boizelle Deputy General Counsel Jacob M. Lewis Associate General Counsel Adam G. Crews Counsel FEDERAL COMMUNICATIONS COMMISSION 445 12th Street SW Washington, DC 20554 (202) 418-1740 fcclitigation@fcc.gov 9 APCO and the Utilities try to wave away this economic harm by citing cases about irreparable injuries. See APCO Mot. 18 19; Utilities Mot. 21. That is not the appropriate standard for third parties, which should not be  substantially harmed by a stay regardless whether that harm is reparable. See Nken, 556 U.S. at 434. 31 USCA Case #20-1216 Document #1861340 Filed: 09/14/2020 Page 32 of 33 CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT Certificate of Compliance With Type-Volume Limitation, Typeface Requirements, and Type Style Requirements 1. This document complies with the word limit of Fed. R. App. P. 27(d)(2) and the Court s September 9, 2020 Order because, excluding the parts of the document exempted by Fed. R. App. P. 32(f) and D.C. Circuit Rule 32(e)(1): & this document contains 7,200 words, or ¡% this document uses a monospaced typeface and contains lines of text. 2. This document complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because: & this document has been prepared in a proportionally spaced typeface using Micr osoft Word for Offi ce 365 in 14 - point Times New Roman, or ¡% this document has been prepared in a monospaced spaced typeface using with . / s/ Adam G. Crews Adam G. Crews FEDERAL COMMUNICATIONS COMMISSION 445 12th Street SW Washington, DC 20554 (202) 418-1740 Counsel for Respondent Federal Communications Commission 32 USCA Case #20-1216 Document #1861340 Filed: 09/14/2020 Page 33 of 33 CERTIFICATE OF FILING AND SERVICE I hereby certify that on September 14, 2020, I caused the foregoing Federal Communications Commission s Consolidated Opposition to Emergency Motions for a Stay Pending Review to be filed with the Clerk of the Court for the U.S. Court of Appeals for the D.C. Circuit using the Court s CM/ECF system, which caused a true and correct copy of the same to be served on all attorneys registered to receive such notices. / s/ Adam G. Crews Adam G. Crews FEDERAL COMMUNICATIONS COMMISSION 445 12th Street SW Washington, DC 20554 (202) 418-1740 Counsel for Respondent Federal Communications Commission 33