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Faced number 20-119 et al.

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AT&T Services Inc.

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petitioner versus Federal Communications Commission and United States of America.

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Mr. Necterline for the petitioner's joint issues, Mr. Reddish for the petitioner APCO, Mr. Carr for the respondents, Mr. Wright for the interveners.

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Good morning.

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I'm John Necterline for AT&T.

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The FCC had an opportunity.

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the FCC had an opportunity in this order to get everything right.

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It could have opened up the six gigahertz band for Wi-Fi while protecting public safety, the power grid, and other licensed uses.

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Specifically, as the NPRM itself proposed, the FCC could have required all unlicensed devices that share spectrum with fixed microwave links to use automated frequency coordination, also known as AFC.

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An effective AFC mechanism would minimize interference risk by keeping these devices from transmitting on the same frequencies as nearby microwave links.

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So why did the FCC ultimately choose not to require AFC for so-called low power devices?

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It is a mystery.

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You'll find nothing in this order stating that AFC would have added significant costs to these devices.

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Indeed, the FCC identified no drawbacks to the use of AFC, which it called simple and easy to implement and did impose for standard power devices.

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It's also unclear what the FCC is saying now in response to this point on appeal.

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Is the FCC saying that AFC is always unnecessary on the ground that even without it, none of these billion odd devices will ever harm any of the nation's 100,000 microwave links over the coming years?

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Well, the FCC seems to shy away from that proposition in its brief.

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That's probably because the order focused on a different question, whether problematic interference scenarios are unrepresentative for a typical, as opposed to whether they're unlikely ever to occur.

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So is the FCC admitting now that it is likely that some of these devices will harm some microwave links, but only on occasion in unpredictable places and times.

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If that's the case, then the FCC had no defensible basis for ignoring calls to equip all these devices with AFC, which would avoid these.

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Mr. Nick, I have kind of a big picture question.

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Could I ask you just to step back from this particular argument about

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frequencies.

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And here's my question.

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As I read your brief, most of your major challenges in here, the one you're now making about automated frequency control, your challenges to the cable lab study, to the adjustments the commission made to the AT&T study,

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and to all the requirements that they imposed on low power devices, things like indoor operation, contention, all that stuff.

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All these challenges seem to rest on your claim that the commission believed its order would eliminate all risk of harmless interference, all risk.

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And if that were right, I think you'd easily win.

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But the commission says that's not what it did.

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They said the order is designed to eliminate the risk of significant interference, not all interference.

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They say, quote, harmful interference will be a rare but possible occurrence.

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So if the commission's right about that, how can its order be

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arbitrary and capricious or asked another way, I didn't see anywhere in your brief where you argued that the commission's order would not in fact eliminate the risk of harmful interference.

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Do you see my point?

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I think so, but let me distinguish between three different propositions.

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One is the very aggressive proposition that sometimes the order seems to be making than the government did make in its response to the stay application, but now seems to have retreated from.

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And that would be the argument that there is no significant risk that at any point any of these devices will ever cause harmful interference to mission-critical microwave links.

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If that proposition were true, then you're right.

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We would have a more difficult argument.

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But that's not what we are arguing.

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We're not arguing that there's a small risk, but only an insignificant risk that at some point in time, some of these billion odd devices will cause interference with some microwave links.

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We think, and we showed that it is very, very likely that at some point over the next 10 years,

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some of these billion odd devices will interfere with some of the 100,000 microwave links.

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We don't know what the government's position is on that proposition.

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The commission's response to that is that that's not what they were intending to do.

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The commission's response to this is that the order will reduce the risk of significant interference, and that if it occurs, the commission has the legal authority to stop it.

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What the commission said is very unclear.

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Let's assume that the commission acknowledged that sometimes over the next 10 years, there will be episodes of harmful interference, but they will be the exception rather than the rule.

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If that is their position,

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then our response to that is, well, why not impose the remedy that you called simple and easy to implement to foreclose the possibility of those harmful interference events from occurring?

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We also pointed out that these post hoc remedies that the commission talks about are not useful in the case of these microwave links.

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It's one thing in the American radio relay case to say, well, if you're a dissatisfied ham radio hobbyist,

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and you're experiencing interference from your outdoor broadband over power line system, then we can talk to the power line company about reducing that.

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It's very different in this context where we're talking about links that at a second by second basis are responsible for preserving the integrity of the power grid.

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for preserving communications among first responders.

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When one of these links goes down, the harm for that day is already done.

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And there will be 911 calls that won't go through.

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There will be failures to communicate with nuclear power reactors.

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That's the concern that we have here.

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Again, all of these concerns could be mitigated significantly by imposing this AFC requirement.

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Ultimately, the FCC, you will look in vain throughout the order, and for that matter, throughout the government's brief to explain why didn't the FCC impose AFCs for these devices.

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It never said it would be too expensive.

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It never said it would impose delays that would make these devices unuseful for their intended purpose.

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Now, I expect that interveners will make arguments like that.

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I will disagree with them and I'll point to places in the record where we think that's disproved.

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But the point is that you'll find nothing in the order where the FCC actually addresses any of those issues.

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If they addressed it in the notice of proposed rulemaking, would that make a difference?

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Well, what they proposed in the notice of proposed rulemaking was exactly what we're seeking, which is to impose an AFC requirement on all devices that operate on the same frequency bands as fixed microwave links.

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And so in a way, it compounds the mystery.

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It's not just that we proposed AFC for all devices to share.

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I thought that was not in all the subbands.

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I thought in the notice of proposed rulemaking,

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at JA 199 paragraph 61, FCC said something to the effect that the requirement you're suggesting would result in the manufacturing of unlicensed devices that are too complex and that are unnecessarily expensive.

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That's a paraphrase, not an exact quote.

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If they had said something to that effect, would that be enough or would you come back and say no?

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I'm sorry, could you give me that JA slide again?

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Could you say 199 paragraph 61, I think.

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So that's a different set of issues.

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What was unfeasible for there is that, remember there are these two sets of subbands within the six GHz band generally.

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The subbands that I'm here talking about today because I represent fixed microwave operators are the subbands where the fixed microwave links operate.

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In this paragraph, the NPRM was referring to other subbands used by the broadcasters for mobile microwave operations.

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And in that context, you are correct that the FCC found that an AFC requirement would not

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help protect truly mobile broadcast operations because there's no way for a database to keep track of where all these mobile transmitters and receivers are at any given moment.

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And that may well be true.

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And NAB has a separate set of arguments about what the FCC should have done for its subbands.

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But again, I'm here and Mr. Reddish is here to talk specifically about the subbands that the FCC was not referencing.

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Can you tell me where in the NPRM they said they would apply AFC?

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for within your bands for um yes power low power transmitters uh well so the um i know they did it for standard power correct um so if you

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You don't have it right now.

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You can tell me on the model.

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That would be easier.

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I do.

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So what we see here on JA 185, if you look at the table,

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The bands that AT&T and APCO and others are concerned about are fixed service subbands.

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So that's rows one and three in the chart on JA185.

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Those would be standard power access points.

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They would all have been accompanied by AFC.

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They require AFC for everything that's standard power in the rule.

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I beg your pardon?

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It didn't require AFC for standard power devices.

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in the order they did require ASC for standard power devices, but they did not allow these low power devices or they would not have, they have followed through on the NPR and they would not have allowed these non-AFC equipped low power devices to have operated in the subbands used by fixed microwave links.

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That's the important point here.

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You're correct.

[00:11:39] Speaker 09:
I misunderstood you earlier.

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I thought you said they had proposed AFC for both standard and low power other than in those two bands.

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I misunderstood you.

[00:11:47] Speaker 04:
No, I'm sorry.

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What I observed was that the FCC would have imposed AFC for any unlicensed device that shares spectrum with fixed microwave links.

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And that's what we're seeking here as well.

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I have a well, we're going to continue on that topic.

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No, I have another question.

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Go ahead.

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Well, why don't you go ahead.

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You ask your other question.

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I'll come back.

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Mine's just a practical one.

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I'm trying to figure if you talk about two questions about this one is you talk about look at some point, there's going to be interference.

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They're doing their statistical thing, but at some point in your theory, there is going to be interference.

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What is your time frame when you say that?

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You say it repeatedly in your brief and it's going to happen, but I never know what your time frame is because your time frame is yearly or monthly.

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That's one thing.

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If your time frame is every hundred years, it's a different thing.

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That is plainly not the time frame.

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The time frame is the useful life of these devices, which are coming onto the market now, and which will pose threats to these fixed microwave links for the years to come.

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Now, each of these devices presumably has a different estimated lifespan, but as long as these rules are in place, none of them need to use AFC, even though they're operating on the fixed microwave frequencies.

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And so you're making your point was, look, they're dealing with statistics.

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We're telling you it's going to happen.

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Right.

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And they have they aren't foreclosing about AFC.

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It's going to happen.

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and maybe on the low end of the statistical analysis or the low end of the bell curve, but it's going to happen, but I never got a timeframe.

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And that's really, I should think, influence.

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So I don't know what the lifetime of these devices are.

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So it could happen often today.

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And once these devices flood the market en masse, now the FCC told the court last year that it was early days and the

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in the production distribution of these devices.

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So the court didn't need to worry about issuing a stay until after this case had been briefed and argued.

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Take them at their word.

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But they are coming onto the market now.

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And what we showed, what CTIA and AT&T showed in the record, and there are full color photographs of these scenarios for everyone to consider, these are real world examples.

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And CTIA is a case essentially taken at random from the first 25 entries in the FCC's own database showing

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clapboard houses of the type that you will expect to see these on licensed devices operating in across the street from mission critical microwaves.

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And that brings up my second question and that is what does it take is it really true that say I lived in a house like that with a direct line to transmission tower and I put my router there in the window

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Is that one, let's just say that one router happens to look right onto the same frequency, emitting from that tower, and it's also the 911 frequency.

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Will one little Wi-Fi router take down 911 operations, or would it require multiple points of access or to have actual practical interference?

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Now, one device is sufficient operating at these power levels without AFC to take down a microwave link.

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And there's unresolved evidence.

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One device, my little Wi-Fi router.

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Yes, absolutely.

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And we're not even talking about, we don't even need to talk about aggregate interference among many different devices.

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What we showed was that one device is sufficient to interrupt the signals reaching a microwave.

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receiver.

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It's sort of like you're in a field and someone from far away is speaking in a normal conversational voice and you're trying very hard to listen to what they're saying but there's someone much closer to you that starts talking loudly and it becomes impossible for you to hear the signals that are coming to you from far away.

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Once that happens the microwave link can go down.

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There's unrebutted evidence in the record that that

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takes down the microwave, like not just for the split seconds of transmission that you find from these devices, but also as much as like 15 minutes while towers go down and networks need to resync.

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Those are 15 minutes where I'm not a technological person.

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How does it take it down?

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I would think there might be a burst of static, but as soon as it stopped, why wouldn't it just keep going?

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It's not nothing's physically breaking.

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It's a little bit like you're a Wi-Fi router at home.

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If the power goes out, then the Wi-Fi router has to boot back up.

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It has to re-sync with the network.

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And that can take up to 5, 10, 15 minutes.

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So Wi-Fi router and picking up on that same line takes it down like turning the power off as opposed to just a momentary static interference?

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there is unrebutted evidence in the record that it does.

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Yes, it's not just momentary.

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It can take entire links down.

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The FCC never denied this.

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I mean, if you look at the order, we have pages and pages in the Joint Appendix where we make the claim that these split-second interference events can bring down networks, microwave networks for minutes at a time.

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The FCC never disputed that in the order.

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And I mean, more importantly, your device isn't going to transmit just once.

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I mean, it's going to keep transmitting.

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It may not do it as much as it does when you download a high-def, when you watch, when you stream a high-def movie.

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But these routers are constantly communicating with other devices in the house.

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They're sending out little beacons that say, here I am, here I am.

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If you want to connect to Wi-Fi, this is the address you should use.

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those signals that are coming sporadically but constantly from these devices can continue bringing down that microwave link across the street.

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And then what do you do?

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And the microwave operator doesn't know exactly what's happening.

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You can't triangulate where this signal is coming from.

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It will have impaired operations for some period until somebody figures out which of the potential 10,000 devices within the vicinity of that microwave receiver is the one responsible.

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for the interference event.

[00:18:10] Speaker 06:
Okay.

[00:18:11] Speaker 06:
Mr. Nathalie, I have a fact question too.

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It relates to the 2.4 gigahertz band and your arguments on behalf of the national broadcasters.

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Yes.

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You say that the contention-based protocol has not protected licensed users in the 2.4 gigahertz band.

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The commission says

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that the 2.4 GHz band rules don't require contention-based protocol.

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What are the facts here?

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Do they or don't they require contention-based protocol?

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Do you know?

[00:18:47] Speaker 04:
I'm happy to address that.

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I want to just frame this by pointing out that this is an issue that's specific to NAB's separate arguments.

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So they don't apply to protecting.

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OK.

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So with respect to the 2.4 gigahertz band, those devices do use contention-based protocols.

[00:19:04] Speaker 04:
My understanding is that those protocols are not required by FCC rules, but is industry standard nonetheless.

[00:19:10] Speaker 06:
So the difference is that they use them, but they're not required.

[00:19:14] Speaker 06:
That's it.

[00:19:14] Speaker 06:
Yes.

[00:19:15] Speaker 06:
Do you know what, is there anything in the record that tells us, you know, what percentage of them use contention based protocol?

[00:19:24] Speaker 04:
I'm not aware of anything in the record on that.

[00:19:26] Speaker 06:
Thank you.

[00:19:27] Speaker 06:
That's all.

[00:19:28] Speaker 06:
Yeah.

[00:19:28] Speaker 06:
Okay.

[00:19:29] Speaker 06:
Well, I think we'll hear from, unless my colleagues have any further questions for you, Mr. Nickleman, I think we'll go to hear from Mr. Reddish.

[00:19:42] Speaker 01:
Morning.

[00:19:42] Speaker 01:
May it please the court.

[00:19:43] Speaker 06:
Good morning.

[00:19:44] Speaker 01:
Mark Reddish for Petitioner ABCO International.

[00:19:48] Speaker 01:
The FCC changed its rules for spectrum that first responders depend upon for life safety communications.

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The FCC was warned letting unlicensed devices use the same frequencies as first responders will cause interference and block emergency communications.

[00:20:02] Speaker 01:
And yet in its order, the FCC did not address even basic public safety concerns such as how long will it take to locate and eliminate interference?

[00:20:11] Speaker 01:
much harm will the public and first responders face while this is happening and emergency communications are blocked.

[00:20:17] Speaker 01:
The FCC didn't even explain why it wasn't requiring real-world testing before these new devices can flood the marketplace.

[00:20:24] Speaker 01:
There's no dispute that the FCC has an obligation to consider public safety and its will-makings.

[00:20:30] Speaker 01:
In Mozilla, this described the law as requiring a focused and specific study of the public safety implications.

[00:20:37] Speaker 01:
That did not happen here.

[00:20:38] Speaker 01:
The FCC does not claim that it conducted a focused and specific study of public safety.

[00:20:44] Speaker 09:
In fact, Mr. Reddish, this whole, unlike Mozilla, this whole proceeding was about allowing other devices onto a frequency that is dedicated, otherwise dedicated to safety and other sensitive forms of

[00:21:06] Speaker 09:
The whole thing was about how do we prevent interference with the sensitive operations.

[00:21:13] Speaker 09:
And it seems like FCC said, here's how we think we can prevent it.

[00:21:18] Speaker 09:
Here's the things we've set up to prevent it.

[00:21:21] Speaker 09:
And there's a disagreement about whether they've prevented it enough or what they've proposed will prevent it sufficiently.

[00:21:28] Speaker 09:
But it's nothing like Mozilla because the whole game here, diminishing by calling it a game, but the whole enterprise here was access to the bands that are already being used by public safety communications.

[00:21:46] Speaker 09:
It seems quite different to me.

[00:21:48] Speaker 01:
Your honor, I'd offer two considerations.

[00:21:51] Speaker 01:
First, there is a key distinction here with Mozilla in that here, it's clear that we're talking about potential interference directly to first responder communications not general internet based communications.

[00:22:06] Speaker 01:
Thus, you would think there'd be a heightened duty, more attention to public safety by the FCC.

[00:22:12] Speaker 01:
But in fact, that's a different argument.

[00:22:15] Speaker 09:
There's an argument that they didn't consider it.

[00:22:16] Speaker 09:
That's what was going on in Manzilla.

[00:22:18] Speaker 09:
There's a separate argument, which I now hear you saying, and that is, well, a substantive argument about their standard, their ruling, that it's not safe enough.

[00:22:27] Speaker 09:
But that's different than saying they didn't consider it.

[00:22:29] Speaker 09:
That's simply saying we disagree with where they drew the line.

[00:22:33] Speaker 01:
Your honor, we are arguing that the FCC failed to consider public safety.

[00:22:39] Speaker 01:
The order was only considering technical issues related to the systems used by first responders.

[00:22:45] Speaker 01:
It was not considering the public safety harms like loss of life.

[00:22:48] Speaker 01:
And when public safety is involved, lives are at stake and those harms are irreparable.

[00:22:55] Speaker 01:
If I may, I'm sorry, I see my time's expired.

[00:22:57] Speaker 01:
Can I make one more point about foregoing the analysis here?

[00:23:00] Speaker 06:
One more, that's it.

[00:23:02] Speaker 01:
So this case demonstrates the dangers of foregoing the focused and specific analysis that Mozilla calls for.

[00:23:09] Speaker 01:
Essential elements of the problem are overlooked.

[00:23:13] Speaker 01:
That happened here.

[00:23:14] Speaker 01:
For example, with regard to emergency special temporary authority, this is a special provision that lets public safety agencies bypass the usual spectrum licensing rules during major events like hurricanes.

[00:23:24] Speaker 01:
We just saw this with Hurricane Ida.

[00:23:27] Speaker 01:
The FCC missed this in its order.

[00:23:29] Speaker 01:
And only after the fact in front of this court did it admit the omission.

[00:23:34] Speaker 01:
And counsel attempted to minimize the problem and suggest that more than a week could go by during a disaster response without the ability to protect these specially authorized public safety communications.

[00:23:45] Speaker 01:
And that wasn't a failure to consider the public safety issues here.

[00:23:49] Speaker 06:
We understand your argument.

[00:23:50] Speaker 06:
Thank you.

[00:23:51] Speaker 06:
Thank you.

[00:23:53] Speaker 06:
We'll hear from Mr. Carr for the commission.

[00:23:58] Speaker 05:
Good morning, Judge Tatel, your honors.

[00:24:00] Speaker 05:
May it please the court.

[00:24:01] Speaker 05:
My name is James Carr.

[00:24:02] Speaker 05:
I represent the Federal Communications Commission.

[00:24:06] Speaker 05:
I'd like to start with the AFC point that petitioners were making.

[00:24:13] Speaker 05:
It is not correct that the commission proposed AFC for low power operations in those parts of the six gigahertz band where

[00:24:25] Speaker 05:
the fixed microwave links where if you look at paragraph 73 of the Notice of Proposed Rulemaking, Joint Appendix 202, at that point, the commission was seeking comment on whether it should allow indoor low-power access point operations in the bands used by the fixed microwave links.

[00:24:45] Speaker 05:
And it specifically asked whether such operation could be authorized without the use

[00:24:51] Speaker 05:
of an AFC system.

[00:24:53] Speaker 05:
It never proposed to use an AFC system with respect to those low power devices, similar to what it proposed in the other bands where the broadcast mobile operations.

[00:25:07] Speaker 09:
Okay, so you asked for information on that question and you got plenty of comments including those from petitioners saying you should use them.

[00:25:18] Speaker 09:
If you need to use them, you must use them, whichever verb they wanted to use.

[00:25:22] Speaker 09:
Where, can you please, this is a thing that's been bothering me from the beginning, where in the record do you address those comments and explain why you're not requiring AFC?

[00:25:35] Speaker 05:
I think the commission basically found that AFC was not necessary because there was no significant risk of harmful interference.

[00:25:43] Speaker 09:
Where is that sentence in the finding that because we find no significant risk, AFC is not required?

[00:25:50] Speaker 09:
Where did you respond and then respond to their comments?

[00:25:57] Speaker 05:
If you look at paragraph 98,

[00:26:01] Speaker 05:
of the commission's order, Joint Appendix 1299, the commission says, based on the record before us, we opened the entire six gigahertz band for unlicensed indoor operations without the need for AFC-controlled access.

[00:26:16] Speaker 09:
Right, that's a description of what you've done.

[00:26:19] Speaker 09:
I don't think there's any dispute that you've opened it up without AFC.

[00:26:22] Speaker 09:
Where do you answer the arguments?

[00:26:24] Speaker 05:
And we said at paragraph 99 that there would be no AFC system, and we took

[00:26:31] Speaker 05:
three other steps, three restrictions designed to prevent harmful interference, that devices be limited to indoor operation.

[00:26:38] Speaker 09:
I did not AFC that they said that will protect even better.

[00:26:43] Speaker 09:
Every device will protect against every different, right?

[00:26:45] Speaker 09:
You said statistically we'll get, statistically we'll knock off most of the devices.

[00:26:51] Speaker 09:
But they said AFC will protect against all devices.

[00:26:53] Speaker 09:
Where is your answer to those comments?

[00:26:57] Speaker 09:
I guess you say we're not doing AFC, I guess you say that, but where's your substantive response to these important comments?

[00:27:04] Speaker 05:
Your honor, what the commission says in paragraphs 8 and 99 is essentially the commission's response, which is that the commission believes that even without an AFC system, there is no need for harmful interference.

[00:27:20] Speaker 05:
I would point out also this- I'm sorry, I couldn't hear the- I'm sorry.

[00:27:26] Speaker 05:
I would point out the petitioners point to language in the NPRM that AFC would be simple and easy to implement.

[00:27:36] Speaker 05:
Well, the commission has found, even with respect to standard power access points, that AFC is not particularly simple.

[00:27:44] Speaker 05:
If you go to paragraph 42 of the order, it describes how

[00:27:51] Speaker 05:
Geolocation technologies, this is Joint Appendix 1279.

[00:27:55] Speaker 05:
Geolocation technologies such as GPS do not work at locations deep within buildings.

[00:28:03] Speaker 05:
And this was a problem for these standard power access points.

[00:28:07] Speaker 05:
They had to develop external sources in order to make AFC work.

[00:28:13] Speaker 05:
It was a more complicated operation for standard power operations than the commission had

[00:28:20] Speaker 05:
anticipated.

[00:28:23] Speaker 05:
It would be even more complicated if you were talking about adding this requirement with respect to mass-produced, mass-marketed, low-power access points, consumer devices.

[00:28:39] Speaker 05:
Just because there are so many of them and- Why is that?

[00:28:43] Speaker 09:
I just don't know.

[00:28:44] Speaker 09:
This is my complete ignorance.

[00:28:46] Speaker 09:
Are these big bulky things you couldn't put on small devices?

[00:28:51] Speaker 09:
Are they too expensive and manufacturers couldn't just build them in?

[00:28:54] Speaker 09:
I just don't know.

[00:28:56] Speaker 09:
I don't have anything.

[00:28:57] Speaker 05:
Fair enough, Your Honor.

[00:28:59] Speaker 05:
As the commission explains in paragraph 42, you need an external geolocation source to be connected to an access point.

[00:29:07] Speaker 05:
either a wired or wireless connection, because if they're being used indoors, it's hard for the AFC to track them.

[00:29:19] Speaker 09:
The whole point is when they're used outdoors, not when they're shooting outdoors.

[00:29:23] Speaker 05:
These are being used indoors.

[00:29:25] Speaker 05:
That's the whole point.

[00:29:27] Speaker 05:
They're all being used indoors, or they're designed to be used indoors.

[00:29:32] Speaker 09:
I mean, they say indoors can include right at the window, at which point they're going to be transmitting outside the building, right?

[00:29:42] Speaker 09:
And so this rationale wouldn't apply, or would it still apply if you're inside a building at the window?

[00:29:47] Speaker 09:
We don't know, because the commission didn't say.

[00:29:49] Speaker 05:
Well, we don't know for sure.

[00:29:52] Speaker 05:
I'm assuming that it might be easier to track if it were closer to a window.

[00:30:01] Speaker 05:
what paragraph 42 says, if these are deep within buildings.

[00:30:06] Speaker 05:
And in many cases, as you may know from personal experience, your wireless routers are often inside your homes.

[00:30:14] Speaker 05:
So they wouldn't be easy to track.

[00:30:16] Speaker 09:
And they're more effective next to a window.

[00:30:20] Speaker 05:
Fair enough, Your Honor.

[00:30:23] Speaker 05:
Yes, Your Honor.

[00:30:25] Speaker 06:
Go ahead.

[00:30:26] Speaker 06:
Are we done with that issue?

[00:30:27] Speaker 06:
Yes, I'm done.

[00:30:28] Speaker 06:
Yes.

[00:30:28] Speaker 06:
I have a couple of technical questions.

[00:30:30] Speaker 06:
Yes, you're right.

[00:30:33] Speaker 06:
Well, first of all, OK, my router is on all the time here.

[00:30:38] Speaker 06:
My phone's on.

[00:30:39] Speaker 06:
They're in constant communication.

[00:30:41] Speaker 06:
The cable lab study used a data set with an average activity factor of 0.4%.

[00:30:50] Speaker 06:
Can you explain to me how that

[00:30:54] Speaker 06:
That suggests to me that the communication between the two of them is occurring less than 1% of the time.

[00:31:01] Speaker 06:
Is that right?

[00:31:02] Speaker 05:
Yes, that's right.

[00:31:05] Speaker 06:
I mean, my phone is at this moment receiving a signal from the rubber.

[00:31:10] Speaker 05:
Right?

[00:31:13] Speaker 05:
Isn't it?

[00:31:13] Speaker 05:
I don't know, Your Honor.

[00:31:15] Speaker 05:
You don't know?

[00:31:16] Speaker 06:
If you don't know, how am I supposed to know?

[00:31:22] Speaker 05:
I'm not an engineer, so I'm lost for much of this case.

[00:31:27] Speaker 06:
Maybe Mr. Nectarline knows the answer.

[00:31:37] Speaker 05:
I wanted to point out that

[00:31:41] Speaker 05:
That figure was derived by, and Joint Appendix 662 is the ex parte where that data was submitted to the commission.

[00:31:54] Speaker 05:
It was taken by Broadcom from one of its customers that runs, that operates a network.

[00:32:01] Speaker 06:
I understand where it came from.

[00:32:03] Speaker 06:
I just don't understand it.

[00:32:04] Speaker 06:
So technologically, I just don't get it.

[00:32:09] Speaker 05:
It's the best evidence in the record, given that it involves actual real-world measurements of Wi-Fi activity.

[00:32:18] Speaker 06:
In the real world where I am right now, my cell phone has been in touch with my router the entire time of this order.

[00:32:31] Speaker 09:
I'll tell you, teenagers in the house, they got 15 devices going.

[00:32:35] Speaker 06:
Yes, they don't even have any teenagers.

[00:32:37] Speaker 09:
There is a phone.

[00:32:38] Speaker 09:
There is a watch.

[00:32:41] Speaker 09:
There is an iPad.

[00:32:43] Speaker 09:
There's a wireless laptop.

[00:32:47] Speaker 06:
Okay, so next technical question.

[00:32:52] Speaker 06:
I asked Mr. Nectarline about convention-based protocol in the 2.4 gigahertz band.

[00:32:59] Speaker 06:
And so do I understand it that it's not required, but many of them used it, right?

[00:33:04] Speaker 05:
That's my understanding, yes.

[00:33:06] Speaker 06:
Is that your understanding?

[00:33:07] Speaker 06:
Well, the reason I asked the question is their claim is,

[00:33:12] Speaker 06:
that there's been chaos in the 2.4 gigahertz band from which the commission has been unable to protect them.

[00:33:19] Speaker 06:
Your answer as well, now we're going to have contention-based protocol, but

[00:33:31] Speaker 06:
According to you and Mr. Necterline, both agree that contention-based protocol is used in the 2.4 GHz band.

[00:33:38] Speaker 06:
So if this contention-based protocol operating in the 2.4 GHz band, how does that give you any assurance that it will be better here in the current, the new one?

[00:33:51] Speaker 05:
Let me observe.

[00:33:51] Speaker 05:
Do you see my point?

[00:33:53] Speaker 05:
I do see your point, Your Honor.

[00:33:54] Speaker 05:
The only evidence of what you described as chaos in the 2.4 GHz band is

[00:34:00] Speaker 05:
there's some anecdotal evidence, there's one example given of some interference in the Phoenix area of mobile broadcast operations where the program coordinator, which is not affiliated with the FCC, it's a private coordinator, frequency coordinator, identified the source of the interference and told the people operating the devices to stop using them, but at least according to

[00:34:30] Speaker 05:
The record, those device users turned on their devices again and created the same sort of interference.

[00:34:38] Speaker 06:
My impression from, I'm sorry.

[00:34:42] Speaker 06:
Where did the commission respond to?

[00:34:44] Speaker 06:
Okay, I overstated it.

[00:34:46] Speaker 06:
Yes, I understand that the commission respond to the national broadcasters category broadcasters claim that the commission has been unable to protect them in the 2.4 gigahertz.

[00:34:59] Speaker 05:
That was one isolated case they identified in the record as best I can tell from this description in the record.

[00:35:08] Speaker 05:
neither the commission nor its enforcement bureau was involved because typically what would happen if the enforcement bureau were involved, it would notify the users of the interfering devices to turn them off and it would also send them a notification, a letter saying that the devices should stay off until the harmful interference is resolved.

[00:35:32] Speaker 05:
And there's a description of how that works in

[00:35:39] Speaker 05:
At footnote 397, joint appendix 1320, the commission cites a notification of harmful interference to Victor Rosario of Brooklyn, New York.

[00:35:53] Speaker 05:
And in that notice, basically the commission told Mr. Rosario, we see that you were operating a device that is causing harmful interference.

[00:36:03] Speaker 05:
We told you to stop.

[00:36:05] Speaker 05:
We want to confirm that you have

[00:36:07] Speaker 05:
that the device is still off and if you turn it on again and it continues to emit harmful interference, you could be subject to monetary forfeitures under Section 503 of the Communications Act and other enforcement measures, including so much as in extreme cases under Section 510 of the Communications Act, the offending device could be seized.

[00:36:29] Speaker 05:
So I think if the commission had been involved in that, if the broadcasters had invoked

[00:36:36] Speaker 05:
had summoned the Commission's Enforcement Bureau, that problem would have been resolved.

[00:36:43] Speaker 06:
All right, my last technical question is, so the petitioners say that these low-power devices that have content-based protocol, that they can really, they only detect each other.

[00:36:59] Speaker 06:
They don't protect point-to-point beings transmitted by microwave towers.

[00:37:04] Speaker 06:
Yes.

[00:37:06] Speaker 06:
And if they're right about that, then this contention-based protocol won't help that, right?

[00:37:16] Speaker 06:
Because, I mean, say you live in a building with a bunch of, you live in an apartment building and there's half a dozen routers and the routers are all sensing each other and only coming on.

[00:37:29] Speaker 06:
That means a router is going to be on all the time.

[00:37:33] Speaker 06:
And they say that's the problem, and these contention-based protocols won't detect the point-to-point transmissions that they fear, that they worry about from microwave towers.

[00:37:45] Speaker 06:
What is the answer to that?

[00:37:46] Speaker 05:
Let me say, first of all, that contrary to, I mean, petitioners have suggested that

[00:37:52] Speaker 05:
these unlicensed devices will never be able to detect the fixed microwave transmissions.

[00:38:01] Speaker 05:
And what the commission said in what note 374, JA 1317, is that indoor unlicensed devices may not always be able to detect the presence of microwave signals.

[00:38:15] Speaker 05:
The SEC's engineers

[00:38:17] Speaker 05:
believe that in a number of instances, these will be detected, but regardless of that.

[00:38:22] Speaker 06:
But isn't it pretty important to know how significant, they may not always suppose they may not always have the time.

[00:38:32] Speaker 05:
The primary reason the commission adopted the contention based protocol

[00:38:38] Speaker 05:
was to limit the amount of time that these unlicensed devices would be transmitting so that no one would be transmitting continuously with a strong signal that goes to the activities.

[00:38:52] Speaker 06:
Right, but in an apartment building where you have a couple of these or many of them, maybe I'm misunderstanding this, but doesn't it mean that at least one will be transmitting all the time?

[00:39:05] Speaker 06:
I mean, at least one, not the same one.

[00:39:08] Speaker 05:
Well, different ones would be transmitting, but again, if it is one particular device that is problematic as opposed to another, then the problematic device would only be on for a short period of time.

[00:39:28] Speaker 05:
Part of the problem with this analysis is that it's particularly complicated in terms of there are so many different things

[00:39:39] Speaker 05:
protect against harmful interference in this context.

[00:39:43] Speaker 05:
And the commission talked about them.

[00:39:44] Speaker 05:
There's building loss.

[00:39:46] Speaker 05:
There is clutter loss.

[00:39:49] Speaker 05:
There is a low activity factor.

[00:39:51] Speaker 05:
The fact that these devices aren't on all the time.

[00:39:55] Speaker 05:
There is the probability of co-channel occupancy.

[00:39:59] Speaker 05:
The only way these devices are going to interfere is if they happen to occupy the same channel.

[00:40:06] Speaker 05:
And as the commission pointed out in Table 6, Joint Appendix 1313, in many cases, there's less than a 10% chance of co-channel interference or co-channel occupancy.

[00:40:21] Speaker 05:
Another thing to keep in mind, particularly important, is the strength of the signals.

[00:40:27] Speaker 05:
Normally, and this goes to

[00:40:30] Speaker 05:
what Judge Millett was asking about, can one device knock these things out?

[00:40:36] Speaker 05:
In the worst case, it could, but normally, normal circumstances, the transmission from a fixed microwave link is so powerful that even in their worst case, the transmission from a low power access point is not going to be strong enough to cause what we know is harmful interference.

[00:40:55] Speaker 05:
That is to- Is that in the record?

[00:40:57] Speaker 05:
Where does it say that?

[00:40:57] Speaker 05:
Yeah, where in the order does it say that?

[00:41:01] Speaker 05:
And that's a paragraph 143 where the commission discusses the phenomenon of deep atmospheric multipath fading.

[00:41:09] Speaker 05:
That's a meteorological phenomenon.

[00:41:14] Speaker 05:
The commission says, J1317, paragraph 143, potential degradation of a microwave link will only occur if a deep atmospheric multipath fade occurs at the same time

[00:41:28] Speaker 05:
The microwave receiver receives.

[00:41:30] Speaker 09:
I apologize.

[00:41:31] Speaker 09:
I'm not, I think I'm missing.

[00:41:32] Speaker 09:
I'm not the right, but you said page 1313.

[00:41:33] Speaker 09:
1317.

[00:41:36] Speaker 09:
My apologies.

[00:41:39] Speaker 06:
Before you read it again, explain to me why that's relevant to the question we're talking about.

[00:41:44] Speaker 06:
Why is a deep, what did you call it?

[00:41:46] Speaker 06:
Deep atmospheric.

[00:41:47] Speaker 06:
What?

[00:41:48] Speaker 06:
Atmospheric multipath fade.

[00:41:50] Speaker 06:
Okay.

[00:41:50] Speaker 06:
Why is that comparable to a low power router?

[00:41:56] Speaker 05:
Well, what a deep atmospheric multipath fade does is it's a disturbance in the atmosphere that causes the received signal from a fixed microwave to lose power.

[00:42:11] Speaker 05:
It causes it to weaken, the signal to weaken to the point where

[00:42:16] Speaker 05:
to the point where you can have degradation, you can have harmful interference from these low-power devices.

[00:42:25] Speaker 05:
But without that fade, these devices, these indoor low-power Wi-Fi access points are not going to, as long as they occur outside the fade, and the commission explained

[00:42:43] Speaker 05:
paragraph 143, that these fading events don't occur often.

[00:42:48] Speaker 05:
And they typically occur between midnight and 8 a.m., which is outside the peak usage period for these life access points.

[00:42:58] Speaker 05:
Okay.

[00:42:58] Speaker 06:
Mr. Carr.

[00:42:58] Speaker 06:
We've taken you well over your time, unless, oh, go ahead, Judge Walker.

[00:43:02] Speaker 03:
I do have one.

[00:43:03] Speaker 03:
Oh, go ahead.

[00:43:04] Speaker 03:
Judge Mollett.

[00:43:04] Speaker 06:
Judge Walker, you go.

[00:43:06] Speaker 09:
You go.

[00:43:06] Speaker 03:
Yeah, go ahead.

[00:43:07] Speaker 03:
It's one question, but it is rather long, Mr. Carr, just as a heads up.

[00:43:11] Speaker 03:
It seems that in three ways, the FCC may have acted arbitrarily and capriciously.

[00:43:21] Speaker 03:
It seems like perhaps with regard to mobile microwave signals, you said that with the preexisting bans, there had been no problem, but you didn't cite any evidence to support your assertion.

[00:43:38] Speaker 03:
With regard to the AFC for the six gigahertz that we've talked a lot about, it seems you described what you were doing instead of AFC, but you didn't say why AFC was not a better alternative.

[00:43:55] Speaker 03:
And this is very in the weeds, but there was a CII study that led to a letter from Edison in April, which was kind of a follow-up letter.

[00:44:04] Speaker 03:
And there was no response to that letter.

[00:44:07] Speaker 03:
There was a kind of a footnote that you dropped, but the footnote just said what you had said before the letter.

[00:44:14] Speaker 03:
Now, if I'm wrong on any of those, I'm sure you think I am, tell me why.

[00:44:19] Speaker 03:
But after that, tell me, even if I'm right,

[00:44:23] Speaker 03:
why we should remand without vacating.

[00:44:28] Speaker 05:
Okay.

[00:44:30] Speaker 05:
Let's start with the third scenario first.

[00:44:33] Speaker 05:
You were talking about the CII study, your honor.

[00:44:37] Speaker 05:
That April letter that they cited, and I think the commission explained this in its brief, that April letter largely relied on a March analysis prior to the commission's order being released.

[00:44:52] Speaker 05:
And the commission addressed all of the relevant points that had been raised earlier.

[00:44:59] Speaker 03:
The fact that it didn't.

[00:45:01] Speaker 05:
Go ahead, Your Honor.

[00:45:02] Speaker 03:
No, no, no.

[00:45:02] Speaker 03:
We're very late.

[00:45:03] Speaker 03:
I'd rather just listen.

[00:45:04] Speaker 03:
OK.

[00:45:05] Speaker 05:
OK.

[00:45:07] Speaker 05:
With respect to your first point about not citing any evidence of no problems with interference in the 2.4 gigahertz and 5 gigahertz bands, I would say, I mean,

[00:45:22] Speaker 05:
It's hard for the commission to prove a negative there.

[00:45:25] Speaker 05:
I mean, essentially, none of the parties have produced any evidence with the exception of that one isolated incident in the 2.4 gigahertz band from outdoor operations in the Phoenix area.

[00:45:39] Speaker 05:
So it seems to me those are examples where there are a multitude of devices being used in those bands.

[00:45:51] Speaker 05:
only isolated instances of harmful interference that had been effectively identified and addressed by the commission.

[00:45:58] Speaker 05:
I'm trying to recall your second point.

[00:46:01] Speaker 03:
Your second point was- It was that you described what you were doing instead of AFC for six gigahertz, but you didn't say why those were better than the alternative AFC.

[00:46:16] Speaker 05:
I've, and I've, I've indicated in my responses earlier to judge the land that I mean the commission commission just basically said, AFC wasn't necessary because there was an insignificant risk of harmful interference here.

[00:46:34] Speaker 05:
Again, I'm sorry, and you had one final question about- Why we should remand without vacating if- Of course, I don't- I know you don't agree- I don't think you should remand at all.

[00:46:49] Speaker 03:
If we conclude on those three, why are those three things not enough to require vacating?

[00:46:57] Speaker 05:
Well, as I've already explained,

[00:47:01] Speaker 05:
Two of them.

[00:47:02] Speaker 05:
I don't know.

[00:47:03] Speaker 05:
I assume I have responses on on on the somewhat friend, Mr. Cart.

[00:47:10] Speaker 03:
This is a somewhat friendly question.

[00:47:12] Speaker 03:
Assume that I disagree with you.

[00:47:14] Speaker 03:
Yes, but but

[00:47:17] Speaker 03:
I think that this is an instance where we shouldn't throw the whole order out and make you start from scratch.

[00:47:23] Speaker 07:
I agree with you coming from, Your Honor, and I appreciate it.

[00:47:25] Speaker 03:
We should just remand so that you can clarify some things that you should have addressed before.

[00:47:30] Speaker 03:
Tell me why that's what we should do.

[00:47:34] Speaker 05:
I think if the court is going to remand, that remand without vacater would be appropriate here because vacating this order would be incredibly disruptive given the fact that devices have already started

[00:47:47] Speaker 05:
started to be deployed.

[00:47:49] Speaker 05:
And also, I think to the extent the court is looking for further explanation from the commission, I think it's well within the commission's power to provide that explanation, if in fact the court feels that further explanation is needed.

[00:48:06] Speaker 03:
Okay, thank you very much.

[00:48:08] Speaker 09:
I just had one more question.

[00:48:09] Speaker 09:
And this again is just sort of a factual point me in the record.

[00:48:13] Speaker 09:
The cable lab study relied on a test of 500,000 devices in New York City.

[00:48:22] Speaker 05:
Yes, your honor.

[00:48:22] Speaker 09:
Which I would submit and maybe take additional notice of as an area with enormous building and external clutter, probably amongst the highest in the United States.

[00:48:36] Speaker 09:
On what basis, give me the explanation and point to me in the record, did the commission conclude that that was remotely representative of the risk of interference nationwide in dramatically different environments?

[00:48:55] Speaker 05:
Well, I think, Your Honor, I understand your point.

[00:49:02] Speaker 05:
I think the commission's view was that these

[00:49:07] Speaker 05:
these access points were distributed throughout New York City.

[00:49:10] Speaker 05:
Now there are certainly portions of New York City that are filled with buildings and clutter, as you put it.

[00:49:20] Speaker 05:
There are other parts that are more remote from the downtown and the Broadway area that are not as good.

[00:49:32] Speaker 09:
there's areas that you would say don't have, maybe not as intense.

[00:49:36] Speaker 09:
There may be a good reason of intensity, but my question again is how it's representative of the entire United States from someone who grew up in the Midwest.

[00:49:47] Speaker 05:
I grew up in the Midwest, too.

[00:49:48] Speaker 05:
So I

[00:49:53] Speaker 05:
I think the commission's point- Did they not address that issue?

[00:49:56] Speaker 09:
Is that why you're- I'm not asking you to answer, I'm asking you to tell me what they said and where.

[00:49:59] Speaker 05:
I don't think they really said anything directly about that.

[00:50:03] Speaker 05:
I think the commission said, given this probabilistic analysis, this was the best evidence the commission had in the record.

[00:50:11] Speaker 05:
on the subject of the likelihood.

[00:50:13] Speaker 09:
Okay, so if an agency has a really, really important question to decide and 20 studies are submitted, none of which, all of which have flaws, none of which are statistical significance or involve representative conditions for the nationwide type of determination the FCC has to make, is it reasonable or is it arbitrary and capricious for the agency to say,

[00:50:41] Speaker 09:
Well, this is the least worst of them all, and I'm going to rely and make all kinds of projections based on that.

[00:50:48] Speaker 09:
Or should the agency say, we're the experts?

[00:50:51] Speaker 09:
We're going to either request better tests or do them ourselves.

[00:50:57] Speaker 09:
First of all, least worst seems a bad way to decide things.

[00:51:01] Speaker 05:
Normally, Your Honor, the commission doesn't conduct its own studies.

[00:51:06] Speaker 05:
It relies on the parties.

[00:51:08] Speaker 05:
I mean, I suppose what it could have done is it could have

[00:51:11] Speaker 05:
asked the parties for more evidence, but there were hundreds of studies submitted.

[00:51:17] Speaker 09:
Were any of them more representative than just New York City?

[00:51:20] Speaker 05:
And some of the studies, and the commission cited a couple in footnote 373 at JA 1317, Monte Carlo studies that assumed a large number of devices transmitting in the six gigahertz band and over a large region, ECC report 302,

[00:51:42] Speaker 05:
was focused on the entire European Union and the RKF report assumed 1 billion

[00:51:49] Speaker 05:
devices in its analysis of deployments throughout the United States.

[00:51:55] Speaker 08:
And they were consistent with the cable labs?

[00:51:58] Speaker 05:
Right.

[00:51:59] Speaker 05:
And they reached conclusions consistent with cable labs, that there was no significant risk of harmful interference.

[00:52:10] Speaker 06:
Thank you.

[00:52:12] Speaker 06:
OK.

[00:52:12] Speaker 06:
Thank you.

[00:52:12] Speaker 06:
We'll hear from the interveners here.

[00:52:15] Speaker 06:
Thank you, Your Honor.

[00:52:16] Speaker 06:
Mr. Wright.

[00:52:20] Speaker 02:
Thank you, Your Honor.

[00:52:21] Speaker 02:
Christopher Wright, representing the intervenors supporting the FCC.

[00:52:26] Speaker 02:
I'd like to start with the discussion of AFC.

[00:52:31] Speaker 02:
In paragraph 147 of the commission's order, it directly recognizes the claims of AT&T and CTIA and others that there ought to be an AFC requirement.

[00:52:45] Speaker 09:
What page?

[00:52:45] Speaker 09:
Where are you?

[00:52:46] Speaker 02:
Paragraph 147, which is JA 1319.

[00:52:51] Speaker 02:
By the time you get to paragraph 147, the commission has of course said that it concludes that there's no significant chance of harmful interference a number of times.

[00:53:02] Speaker 02:
Now you have to skip over paragraph 148 where it starts, we also disagree with another contention of CTIA.

[00:53:10] Speaker 02:
And then the first sentence of paragraph 149 says,

[00:53:15] Speaker 02:
We disagree with AT&T and CTIA's views about the likelihood of harmful interference.

[00:53:20] Speaker 02:
So as Mr. Carr said, it's very clear from this order that the commission did not adopt an AFC requirement because it thought there was an insignificant chance of harmful interference without one.

[00:53:34] Speaker 02:
And that's the issue before this court.

[00:53:36] Speaker 09:
And the question- Is there a number on insignificant risk?

[00:53:41] Speaker 09:
You know, insignificant risk could be

[00:53:46] Speaker 09:
20%, 10%, 30%.

[00:53:49] Speaker 09:
Is there a number somewhere?

[00:53:50] Speaker 09:
Because when you're talking about health and safety, one would, you know, no, much lower percent.

[00:53:57] Speaker 02:
Well, the commission hasn't given numbers.

[00:53:59] Speaker 02:
And realistically, I don't think I don't think that's possible.

[00:54:02] Speaker 02:
It's defined harmful interference to require

[00:54:05] Speaker 02:
serious degradation, repeated interruption, obstruction or endangerment.

[00:54:11] Speaker 09:
Well, obstruction doesn't have an adjective with it, or an adverbial adjective.

[00:54:17] Speaker 02:
Well, this requires obviously more than interference and regular interruptions and that sort of thing.

[00:54:26] Speaker 02:
I think the commission is right in saying that it can identify harmful interference and it

[00:54:34] Speaker 02:
It took a, it didn't just throw up its hands and say, you know, the Cable Labs study is the least worst study.

[00:54:42] Speaker 02:
It took a very careful look at all of these studies and concluded that they show that there's an insignificant chance of harmful interference.

[00:54:52] Speaker 02:
You know, with respect to the Cable Labs study, I think the most important thing is that the commission has made clear that it thinks these worst case analyses aren't worth much.

[00:55:02] Speaker 02:
that a risk-based analysis is much more sophisticated, and yet AT&T just came in with worst-case analyses.

[00:55:11] Speaker 09:
Why aren't they, though?

[00:55:11] Speaker 09:
Just help me understand, because they sound pretty awful, right?

[00:55:15] Speaker 09:
If all some bad actor has to do is take Wi-Fi routers outside and start pointing them at a tower to disrupt 911, that's rather disconcerting.

[00:55:25] Speaker 09:
And even if it's only going to work

[00:55:27] Speaker 09:
25 or 20% of the time, that seems a lot for safety.

[00:55:32] Speaker 02:
The evidence from my friend, Mr. Nectarline's client isn't even anecdotal.

[00:55:37] Speaker 02:
It's not even mostly something that happened.

[00:55:39] Speaker 02:
It's sort of, we can sit here and think of a combination of 12 things that are all unlikely, but yes, it's possible they could all happen at once.

[00:55:50] Speaker 02:
And the FCC's engineers are quite sophisticated.

[00:55:55] Speaker 02:
And they start actually, I believe, with your intuition that your little router is unlikely to bring down some powerful fixed wireless device.

[00:56:06] Speaker 02:
But it is technically possible if a whole lot of things happen at once.

[00:56:12] Speaker 02:
One of the things that has to happen is this deep fading event that

[00:56:21] Speaker 02:
that Mr. Carr talked about that's discussed in paragraph 143.

[00:56:25] Speaker 02:
And I want to highlight that even though the commission said quite clearly that harmful interference will only occur if there is both an excessively high power transmission from an unlicensed device and a quote, deep atmospheric multipath fade unquote.

[00:56:47] Speaker 02:
And the other side has just completely ignored that paragraph.

[00:56:51] Speaker 02:
They didn't mention it, so we mentioned it just to make that clear.

[00:57:00] Speaker 02:
And in their reply, they just ignored it again.

[00:57:02] Speaker 02:
So I mean, I think the petitions can be dismissed for that reason alone.

[00:57:06] Speaker 02:
The commission said that it thinks harmful interference will only occur if there's one of these deep fading events.

[00:57:13] Speaker 02:
And we've got nothing from the other side on that.

[00:57:19] Speaker 09:
Can I also ask you about the 0.4% activity factor?

[00:57:25] Speaker 09:
This must come from my ignorance, because like Judge Tatel, I swear my kids are burning out the Wi-Fi every time they're awake, every hour they're awake.

[00:57:34] Speaker 02:
Here's how I understand it.

[00:57:36] Speaker 02:
It's like when you download a video, the video then is on for two hours, but it downloads in a burst.

[00:57:46] Speaker 02:
And, you know, with the new wide channels and the six gigahertz band, it's gonna it's gonna download in a really tiny burst.

[00:57:55] Speaker 02:
So you might be watching for two hours, but the

[00:57:58] Speaker 02:
But the connections were a matter of seconds or less.

[00:58:06] Speaker 06:
Let me just ask.

[00:58:09] Speaker 06:
Is that the answer to my question?

[00:58:10] Speaker 06:
So the router is always sending out a signal, correct?

[00:58:15] Speaker 06:
But that's not the signal that anybody's worried about.

[00:58:18] Speaker 06:
The signal that they're worried about is the time when the router is not just sending out its signal, but it's when it's communicating a message.

[00:58:26] Speaker 06:
Is that right?

[00:58:28] Speaker 06:
Or do I not understand?

[00:58:29] Speaker 02:
Well, let me try this way.

[00:58:30] Speaker 02:
I mean, it's not just because the light is blinking or something like that.

[00:58:35] Speaker 02:
That doesn't mean you talk, but your communications, your voice takes up so little.

[00:58:43] Speaker 06:
Isn't there a signal right now coming from my router to my phone?

[00:58:47] Speaker 02:
My phone says I'm connected to my router.

[00:58:55] Speaker 06:
How does it know that unless it's receiving a signal from the router?

[00:59:01] Speaker 02:
But again, your TV is connected to something too when you're watching the video.

[00:59:12] Speaker 03:
Can I ask if this is how it works?

[00:59:15] Speaker 03:
Let's say that

[00:59:16] Speaker 03:
Every five seconds, the router sends something to my phone.

[00:59:21] Speaker 03:
But it only takes it one one hundredth of a second to send.

[00:59:27] Speaker 03:
So that would mean we're looking at 1,500 at the time.

[00:59:32] Speaker 03:
I'm just making those numbers up completely, but that could get you to a number like 0.4%.

[00:59:37] Speaker 02:
Yeah, is there a, right.

[00:59:39] Speaker 02:
And well, let me point out that while the petitioners have what I think of as a grumpy footnote in their reply brief that sort of says, we don't really believe this,

[00:59:51] Speaker 02:
you know, they're capable.

[00:59:53] Speaker 02:
This is AT&T and a lot of other big companies.

[00:59:56] Speaker 02:
They could do their own study.

[00:59:58] Speaker 02:
If there was some reason to doubt the 0.4%, they could have put it in the record and they didn't.

[01:00:04] Speaker 06:
Okay.

[01:00:07] Speaker 06:
Can I ask him to go ahead?

[01:00:08] Speaker 06:
No, no, you go ahead.

[01:00:09] Speaker 06:
I was going to, as long as you keep going.

[01:00:13] Speaker 09:
about enforcement.

[01:00:15] Speaker 09:
And that is, you know, as I was talking about Phoenix, but that was different types of communications altogether and the whole premise here is that just

[01:00:27] Speaker 09:
a legion amount of new devices and Wi-Fi devices are gonna pour into the market, into the households, everything from toasters to doorbells to the stuff we're talking about now, phones, televisions and computers.

[01:00:44] Speaker 09:
How is enforcement possibly gonna work if there actually is some interference that happens?

[01:00:52] Speaker 09:
How is it possible?

[01:00:53] Speaker 09:
You're never gonna be able to figure out

[01:00:56] Speaker 09:
I mean, I guess they can't even come to the curtilage.

[01:00:59] Speaker 09:
They have to walk around the block looking for Wi-Fi routers and windows, or I just don't know how people can move it outside and then move it back inside.

[01:01:06] Speaker 09:
I don't understand how enforcement works here.

[01:01:07] Speaker 09:
I really don't.

[01:01:09] Speaker 02:
So again, you have to have this confluence of events.

[01:01:12] Speaker 02:
But petitioners nicely put some pictures in their brief of places where they thought interference might occur.

[01:01:22] Speaker 02:
won't take deep study to figure out, jeez, we should look in that flimsy shed there.

[01:01:29] Speaker 02:
Or is there somebody on the patio after midnight for some reason?

[01:01:32] Speaker 02:
And again, you know what?

[01:01:36] Speaker 09:
By the time the investigators get there, unless you tell me they're just roving around, shining flashlights in people's windows looking for routers, I just don't understand how it's going to work, really, in the way that it could.

[01:01:47] Speaker 06:
It's going to be a router police patio.

[01:01:52] Speaker ?:
Right.

[01:01:52] Speaker 02:
Well, you know, the FCC has experienced tracking down pirate radio stations.

[01:01:59] Speaker 02:
And of course, they're trying to hide from the FCC.

[01:02:02] Speaker 02:
So somebody goes out after midnight, you know, and takes their router outside, because that's the thing that would cause interference, not just a laptop.

[01:02:10] Speaker 02:
And, you know, they're not even they're not even hiding.

[01:02:13] Speaker 02:
So

[01:02:15] Speaker 06:
Unless we're way over, unless you have more questions.

[01:02:19] Speaker 06:
Okay, great.

[01:02:24] Speaker 06:
Thank you.

[01:02:27] Speaker 06:
Thank you, Mr. Wright.

[01:02:30] Speaker 06:
Let's see.

[01:02:31] Speaker 06:
Mr. Nectarline, you were out of time, but you can take two minutes.

[01:02:36] Speaker 04:
Thank you.

[01:02:37] Speaker 04:
First, I want to respond to the point that they didn't impose AFC because they found there was an insignificant risk of something.

[01:02:44] Speaker 04:
Focus on what the something is they said there was no significant risk of.

[01:02:49] Speaker 04:
What they were ultimately saying is, in the mind run of normal cases,

[01:02:54] Speaker 04:
there is an insignificant risk that a given router will cause a particular microwave link to go down.

[01:03:00] Speaker 04:
The FCC was always focused on that question, not on the one we're concerned about, which is whether over time, in the trillions of interactions between these billion-odd devices, 100,000 microwave links, whether it is likely, and as indeed it is, that some of these microwave links will be compromised.

[01:03:20] Speaker 04:
Number two, AFC is not particularly difficult to implement.

[01:03:24] Speaker 04:
The FCC is implementing it right now with respect to standard power devices.

[01:03:29] Speaker 04:
There are well-accepted protocols for consumers to take their devices to Windows or to enter their addresses.

[01:03:35] Speaker 04:
Those will go 99% of the way towards resolving concerns of the type that we're here today to discuss.

[01:03:42] Speaker 04:
Again, the FCC never explained why it didn't impose the AFC requirement for these devices, even though it proposed in the NPRM again to use AFC for any device to share spectrum with these microwave links.

[01:03:58] Speaker 04:
Deep atmospheric fade.

[01:04:01] Speaker 04:
I'm glad that Mr. Bright brought that up.

[01:04:03] Speaker 04:
He falses for not addressing it in our reply brief.

[01:04:05] Speaker 04:
Well, the FCC didn't address deep atmospheric fade in its own brief.

[01:04:09] Speaker 04:
And that's why we didn't feel the need to address it.

[01:04:12] Speaker 04:
And it's for good reason the FCC didn't address it.

[01:04:14] Speaker 04:
It's because these fade events happen constantly.

[01:04:18] Speaker 04:
To be sure, they can be particularly bad between midnight and 8 AM, but there was undisputed evidence in the record

[01:04:26] Speaker 04:
that they can happen any time of day.

[01:04:28] Speaker 04:
They can happen in really, they can happen in very problematic ways in the morning.

[01:04:36] Speaker 04:
If there's fog, it can happen at 10 a.m.

[01:04:40] Speaker 04:
at night.

[01:04:40] Speaker 04:
AT&T submitted evidence to that effect.

[01:04:43] Speaker 04:
The FCC never responded to that.

[01:04:46] Speaker 04:
And I would like to refer you to JA 611 and 612, 644 to 647, 1236 to 37.

[01:04:55] Speaker 04:
I see my time is out, I had a couple of additional points.

[01:04:58] Speaker 09:
I'm sorry, could you just say those page numbers again?

[01:05:02] Speaker 04:
Sorry.

[01:05:02] Speaker 04:
Okay.

[01:05:03] Speaker 04:
So the, I'm sorry.

[01:05:07] Speaker 04:
The whole series, I'm here from off very fast.

[01:05:12] Speaker 04:
Yes.

[01:05:13] Speaker 04:
So if you look at- Just give me the numbers.

[01:05:18] Speaker 04:
1237.

[01:05:21] Speaker 04:
Also, AT&T submitted an ex parte on this whole issue of FADE that is not in the Joint Appendix, but it's available on the FCC's website and is part of the Administrative Record, is an AT&T ex parte letter dated August 8, 2019.

[01:05:37] Speaker 04:
Also, APCO addressed this issue in its comments, JA375, where it talked about fade events in the morning.

[01:05:46] Speaker 04:
The point is that these microwave links are precisely engineered, not just to blast a lot of power at receivers.

[01:05:53] Speaker 04:
Because these microwave links have to avoid interference with one another and the FCC has to regulate their power.

[01:05:59] Speaker 04:
They are precisely engineered to cope with constant threats of environmental degradation in the form of shifting atmospheric events.

[01:06:09] Speaker 04:
They are not engineered to cope with additional manmade interference on top of that.

[01:06:16] Speaker 04:
And that is a point that the FCC never adequately addressed in the order as well.

[01:06:21] Speaker 04:
And again, I just want to close by pointing out that all of these issues can be addressed through AFC.

[01:06:29] Speaker 04:
AFC is the solution to making sure that these mission-critical microwave links don't fail.

[01:06:38] Speaker 04:
I see my time is out.

[01:06:39] Speaker 06:
I do have a... Yep.

[01:06:40] Speaker 06:
No, most of my colleagues have any other questions.

[01:06:44] Speaker 06:
You're well over time.

[01:06:45] Speaker 06:
Thank you.

[01:06:46] Speaker 06:
Okay, thank you very much.

[01:06:47] Speaker 06:
Yeah.

[01:06:48] Speaker 06:
Gentlemen, thank you all for your arguments today.

[01:06:50] Speaker 06:
The case is submitted.