By Donny Jackson

A proposal calling for the FCC to grant the FirstNet Authority a nationwide license to the 4.9 GHz spectrum currently designated for public-safety use would be “unlawful,” according to a legal analysis filed this week with the FCC by an organization opposing the idea.

Commissioned by the Coalition for Emergency Response and Critical Infrastructure (CERCI), the legal analysis was prepared by the law firm of Jenner & Block and submitted to the FCC on Monday as part of the ongoing 4.9 GHz proceeding. CERCI has stated its opposition to the notion of the FCC granting the FirstNet Authority a nationwide license to the 50 MHz of 4.9 GHz of spectrum—a proposal made by the Public Safety Spectrum Alliance (PSSA)—since the organization was established in November 2023.

While CERCI’s previous arguments have been based on operational positions—notably, that local public-safety agencies should maintain control of the spectrum—the latest filing includes the legal analysis that it would be “unlawful” for the FCC to grant a nationwide license to the FirstNet Authority, for three reasons.

“First, the Commission lacks statutory authority under the Middle Class Tax Relief and Job Creation Act of 2012 to award the FNA [the FirstNet Authority] a license beyond the 700 MHz band addressed by that Act, and no other statute authorizes such a transfer,” according to the filing with the FCC. “Second, even if the FCC were authorized to make this grant, the FNA is not statutorily authorized to receive it.

“Third, attempting to undertake this grant based on existing statutory authorities would, in any case, violate the major questions doctrine and raise nondelegation issues. In light of these numerous and fundamental issues, the Commission should decline to grant the FNA control of the 4.9 GHz band.”

Specifically, the legal analysis in the CERCI filing notes that the FirstNet Authority is a federal entity—housed within the National Telecommunications and Information Administration (NTIA)—and the FCC is the regulator of spectrum licensed to non-federal entities. Of course, the FCC granted the FirstNet Authority a license to the 700 MHz Band 14 spectrum, but it was only allowed to do so by specific language in the 2012 statute passed by Congress that established the FirstNet Authority, according to the legal analysis.

No such mandate rom Congress exists that would allow the FCC to award the FirstNet Authority (FNA) with a nationwide license in the 4.9 GHz band, according to the legal analysis.

“Binding FCC regulations provide that the 4.9 GHz band, in particular, may only be assigned to ‘[s]tate or local government entities’ or ‘[n]ongovernmental organizations.’ The FNA is neither,” the Jenner & Block analysis states. “And, in fact, in 2002, the 4.9 GHz band was specifically transferred from Federal use for public safety use by non-Federal entities. In its explanation for so doing, the FCC noted that ‘the Commission does not license Federal entities to use non-Federal spectrum.’”

In addition, the legal analysis in the latest CERCI filing contends that it also would be impossible for the FirstNet Authority to accept such a spectrum award under existing law.

Again citing the 202 law that created FirstNet, Jenner & Block note that Congress only allowed the FirstNet Authority to hold a license to the 20 MHz of 700 MHz spectrum that today is known as Band 14.

“As a matter of plain text under the negative-implication canon, as well as under these binding regulations, the Act can only be read to authorize the [FirstNet Authority] to receive and use the 700 MHz band, to the exclusion of all other bands,” according to the legal analysis.

Finally, the legal analysis in the CERCI filing states that the FCC granting a 4.9 GHz license to the FirstNet Authority “would violate the major-questions doctrine and implicate the nondelegation doctrine.” Such action would represent a question of “vast ‘economic and political significance.’”

Such an action is not entirely without precedent, but the FCC awarding the 700 MHz Band 14 license to the FirstNet Authority was done at the direction of Congress.

“The last time this occurred, Congress addressed this problem directly—in response to national debate regarding the difficulties of first response during the 9/11 attacks,” according to the Jenner & Block analysis. “The suggestion that the Commission reallocate the 4.9 GHz band nationwide would entail the Commission’s impermissibly stepping into the shoes Congress has until now filled.

“Moreover, this allocation would strip autonomy from over 3,500 state, local, and NGO licensees, and thereby fundamentally reorder the public-safety broadband landscape in favor of federal control. That kind of seismic shift is permissible only if the agency can “point to ‘clear congressional authorization’ for the power it claims.” As discussed, there is no such authorization here.”

The FCC opened the latest 4.9 GHz proceeding as commissioners continued to maintain that the band dedicated to public-safety use has been underutilized. Proponents of the PSSA proposal to grant a nationwide license to the FirstNet Authority note that the FirstNet priority-and-preemption model in 4.9 GHz would ensure full utilization of the spectrum, prioritize public-safety usage, and result in a robust ecosystem of 4.9 GHz devices and applications—characteristics that exist with the 700 MHz Band 14 spectrum licensed to the FirstNet Authority today.

In January 2023, FCC commissioners approved new rules for the 4.9 GHz spectrum. This marked the first action taken by the FCC regarding 4.9 GHz since commissioners halted some short-lived rules—passed near the end of the Donald Trump presidential administration—soon after President Joe Biden took office in January 2021.

In its new rules, the FCC committed to a framework that would have a single nationwide band manager to coordinate usage of the spectrum, although the agency is seeking comment about how the band manager should be chosen. In addition, the rules call for expanded use of the airwaves beyond the public-safety sector.

While PSSA has proposed that the FirstNet Authority be granted a nationwide license to the 4.9 GHz spectrum, PSSA officials have stated publicly that a different entity—not the FirstNet Authority—would serve as the band manager under its plan.