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Page number 24-1363 at L. Public Safety Spectrum Alliance and Public Safety Broadband Technology Association petitioners versus Federal Communications Commission and United States of America.

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Ms.

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Amundsen for Petitioners Coalition for Emergency Response and Critical Infrastructure et al.

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Mr. Obelhoff for Petitioners Public Safety Spectrum Alliance and Public Safety Broadband Technology Association.

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Mr. Kengu for the respondents.

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Mr. Turner for Interveners National Procurement Order of Police and Public Safety Spectrum Alliance.

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Good morning, Ms.

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Amundsen.

[00:00:36] Speaker 04:
Good morning, Your Honors.

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May it please the court.

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My name is Jessica Ring Amundson and I represent the Coalition for Emergency Response and Critical Infrastructure along with our co-petitioners, the San Francisco Bay Area Rapid Transit District, the National Sheriffs Association and the California State Sheriffs Association.

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In the Spectrum Act in 2012, Congress created a new federal entity called FirstNet and then ordered the commission, which otherwise does not have authority to grant licenses to federal entities, to reallocate a specifically defined 20 megahertz of Spectrum from public safety entities to the new federal entity, FirstNet, and to issue a, quote, single license to FirstNet.

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In the order under review without any further statutory authorization, the commission granted FirstNet, and by extension, its commercial partner AT&T, which operates the FirstNet network, access to an additional 50 megahertz of spectrum on an entirely different band that for decades has been dedicated to use by state and local public safety entities.

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The commission used a workaround to circumvent the statutory prohibition on its authority to issue licenses to federal entities directly.

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But each step of that workaround is independently contrary to law.

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This order is very, it's a very odd combination of being final on some questions and interlocutory on others.

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Take your point that

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All of this seems geared to shifting spectrum from incumbent licensees to first net.

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And that seems problematic when the FCC is doing it and then TIA is not involved.

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But they say they reserve two critical questions.

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One is whether the band manager will ever

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get a license at all, and number two, whether the contemplated agreement between the band manager and FirstNet will be approved.

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So if those two things are up in the air, this concern about the workaround has a little bit of a rightness question to it.

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I mean, it might or might not happen.

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So why would we strike this order now based on, I mean, if either of those contingencies fail, the work around won't happen.

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So your honor, I think that the order is clear that those contingencies are going to happen.

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And so where you can look is in paragraph 21 of the order where the commission says that the best mechanism for putting unassigned spectrum to use as quickly and efficiently as possible is to assign a nationwide overlay license to the band manager.

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And then if the court also looks at the actual ordering clauses and the rule that the commission adopts, which is at JA 706, the new rule 90.1217, the band manager is charged with, quote, managing a sharing agreement with the first responders network authority.

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So the commission is quite clear that while I think they are trying to reserve some things

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escape judicial review.

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What is what is happening here is this nationwide overlay license that's a pass through to first.

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And yeah, I agree with that.

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And yet in footnote 107, they say

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Um, band manager has yet to be selected.

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The bureaus will do that.

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We think this is going to work out to pick the most qualified person and then we will review when and only when that happens.

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We will review.

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The band manager's application for a license.

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I just, I don't know what to make of that.

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Well, I think what the court should look to is the actual rule that the commission adopts at 90.1217, where it says that the band manager's job is going to be to manage a sharing agreement with FirstNet.

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That's at, I think I just had it.

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So, that is going to be.

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We'll have the following.

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Right.

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So, this is the actual rule that they adopt.

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These are the responsibilities of the band manager and the band manager is going to manage a sharing agreement with the first responders network authority.

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So, I take your honor's point that at times the commission really is trying to have it both ways.

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They're trying to say like for purposes of the 309 J exemption, we're going to rely on first nets

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that it's going to offer public safety services.

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But because there's potentially a problem with the sharing agreement under rule 2.103b, we're going to say it's kind of tentative whether we're actually going to create that sharing agreement.

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Interlocutory on who the band manager is, but final on whoever it is the band manager has to try to do the work around.

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Exactly.

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The band manager is charged with being a pass-through of 50 megahertz of spectrum that Congress never authorized FirstNet to use to go to FirstNet.

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Ms.

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Sandinson, so I take your arguments that FirstNet can only exercise the authorities that are given to it by Congress.

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But reading through the Spectrum Act,

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I get the sense that the initial license allocation is a floor and not necessarily a ceiling.

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And I'm wondering about the several provisions of the Spectrum Act that say first neck in contract with federal state

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entities, other organizations.

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So if FirstNet has given this ability to contract with other entities, why wouldn't that include something like a sharing agreement with the band manager?

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So, Your Honor, I think first, just to push back a little bit on reading the Spectrum Act to be sort of a floor for Spectrum rather than the ceiling for Spectrum, I think if you actually look through the text of the Spectrum Act... I've done that.

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I've read the whole Spectrum Act.

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Congress is quite clear that it is talking about this specific 20 megahertz of spectrum.

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They go in section 1401.

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It defines it specifically with reference to each frequency.

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In section 1411, it instructs to reallocate the 700 megahertz d-block spectrum.

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In section 1421, it defines.

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But there are other indications as well, though, where it talks about the authority it says,

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Yeah, I mean, there are contrary indications.

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I mean, it mentions the specific band in some places, and then in other places it suggests, you know, that this is, I'm just looking for some of these provisions, right, that their network components will initially consist of a core network, right?

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And then there are several kind of

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I guess what we call like with the Constitution, like sweeping clauses, right?

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That FirstNet can do, can exercise incidental powers, that they can exercise things that are appropriate to its responsibilities, and they are specifically given contracting authority.

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So I guess why does the contracting authority not cover the sharing agreement?

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Because the contracting authority is limited to the spectrum that Congress specifically allocated and ordered the commission to give FirstNet a license to.

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That license under section 14.1 was, quote, for the use of the 700 megahertz.

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But if they already have that license, then why do they need contracting within that band?

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Doesn't the contracting look outside of that band?

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Or in addition to the band?

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So Congress was limiting them to the 700 megahertz D block.

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The contracting authority is with AT&T, which then uses that spectrum for commercial purposes.

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Is AT&T a federal state agency?

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I mean, the contracting authority is quite broad.

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So Your Honor, what I think the Spectrum Act, there is no indication in the Spectrum Act that, in fact, Congress meant to grant first net access to spectrum other than the 700 megahertz spectrum.

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And if you look, for example, one might expect that the provision on, quote, maintenance and upgrades might say something about being allowed to go onto spectrum other than the 700 megahertz spectrum.

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The text is littered throughout with references that first net is limited to the 700 megahertz spectrum and the text also puts very important limitations.

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Your honor is talking about the limitation on first net's authority.

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The text also puts important limitations on the commission's authority.

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which are very important here as well.

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The Spectrum Act essentially charges the commission with doing just three things.

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So first, it is supposed to reallocate the 700 megahertz D block spectrum and facilitate its transfer.

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Second, it is supposed to award the quote single license for the use of the 700 megahertz D block.

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I mean, those are a couple of mentions.

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What about 1426

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B, V1D, which says, so one of the duties and responsibilities is at a minimum, they list all these things, which includes managing and overseeing the implementation and execution of contracts or agreements with non-federal entities to build, operate, and maintain the network.

[00:10:30] Speaker 04:
Exactly, Your Honor.

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And the network is the network that has been defined on the 700 megahertz D block spectrum.

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Where's the network limited to the 700 megahertz?

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If you look at the license that is allowed to be granted, which is under 1421,

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A, the commission shall reallocate a license to the first responder network authority, quote, for the use of the 700 megahertz D block spectrum and existing public safety broadband spectrum.

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And before your honor thinks that existing public safety broadband spectrum is something broader than the 700 megahertz spectrum,

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Your honor should refer back to section 1401, which defines existing public safety broadband spectrum with reference to specific frequencies from 763 megahertz to 768 megahertz and so on.

[00:11:26] Speaker 04:
So Congress was quite specific here both about what it wanted FirstNet to be and it seems sort of inconceivable that Congress would have gone so far as to legislate things like the daily per diem for FirstNet's board members and not mention that FirstNet would have access to

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potentially 50 megahertz of additional spectrum, a fact that would have been extremely important for those who were bidding on the RFP for the 20 megahertz of spectrum to know at the time.

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So the contracting, the broad contracting authority, which is mentioned twice in the statute,

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cannot include contracting outside of the 700 megahertz band.

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That's the position of your point.

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What FirstNet is limited to in this is the 700 megahertz T block spectrum, and that Congress was extremely clear about that.

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But also the broad contracting provision, the federal, state,

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local organizations doesn't include outside the 700 ban.

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It is for operation of the national public safety broadband network, which is limited to the 700 megahertz T block spectrum.

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That is what the contracting authority is limited to, your honor.

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And importantly, the commissions, as I said, the commission's authority is likewise limited by the Spectrum Act.

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So it does just seem very odd that Congress would have so

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issued such detailed specifications and yet forgot to mention that actually FirstNet could get access to an additional 50 megahertz of spectrum worth $15 billion.

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If I could turn... Your lead argument rests on an inference from a regulatory structure under which

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The FCC allocates spectrum to non-federal entities and manages those entities.

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And NTIA allocates spectrum to federal entities and manages those entities.

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If that's true, why did Congress require the FCC to grant the initial license to FirstNet?

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Because this was a one-time carve out from the ordinary default principle.

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And that's why, in fact, you needed legislation to do this.

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This was spectrum that was being used.

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The 700 megahertz D block spectrum was spectrum that was being used under the auspices of the FCC by state and public local.

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So they had to reallocate the spectrum.

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Yes, there were already non-federal entities in that band who had to be relocated and the spectrum had to be reallocated.

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So that's why the Congress ordered the commission to do that with respect to this single license.

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And that's why what the commission had to do here,

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Initially, FirstNet and PSSA urged the commission to just grant FirstNet a license directly.

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Once Cersei and others pointed out that that would be unlawful, they pivoted to this whole workaround situation, which circumvents the important limitations that Congress placed on their authority.

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Does TIA, in fact, regulate federal licensees the way the FCC regulates non-federal

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Licensee is an aspect of the case that's very puzzling to me.

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I would think that agency should be front and center in this dispute, and they are oddly silent.

[00:15:04] Speaker 04:
NTIA assigns spectrum to federal agencies.

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I am not as familiar with exactly how NTIA, other than what

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the first net entity does here, what NTIA does with respect to how it oversees other federal entities' use of spectrum.

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But here, the authority that we are challenging is the commission's authority and first net's authority.

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If I could turn to just the workaround and why each of the aspects of it are independently contrary to law.

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I mean, just for your benefit, I'll tell you that argument

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has a lot more intuitive force, at least in my mind, if NTIA is this independent regulator that is and should be handling federal entities like FirstNet.

[00:15:59] Speaker 04:
Well, it is.

[00:16:00] Speaker 07:
As opposed to just some formal thing that makes the initial assignment of Spectrum and then FCC is effectively regulating everything.

[00:16:12] Speaker 04:
I mean, what's happening here is FirstNet knows that it should have needed to go to Congress to ask for more spectrum.

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And instead, FirstNet went to the commission to ask for more spectrum.

[00:16:24] Speaker 07:
Why couldn't they go to NTIA?

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The statute says NTIA assigns spectrum to federal entities.

[00:16:31] Speaker 07:
It would seem like that's what should have happened.

[00:16:33] Speaker 04:
Well, what did happen is that they went to the commission and the commission established this whole work around.

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So the commission used the 309J exemption.

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Do you agree that they could have gone to NTIA?

[00:16:48] Speaker 04:
They could have, I assume that they could have lobbied NTIA as well, but I think NTIA realizes that Congress needed to allocate additional spectrum.

[00:16:57] Speaker 07:
Could NTIA at this point just bless this and say, yes, we agree with what the FCC is doing to the extent we are responsible for assigning the spectrum of first net.

[00:17:08] Speaker 07:
We authorize spectrum to operate in this other band.

[00:17:11] Speaker 04:
No, because this is state and local public, this is spectrum where there are incumbent state and local public safety entities that the commission oversees.

[00:17:21] Speaker 04:
So this is spectrum where NTIA doesn't have authority over this spectrum.

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The commission has authority over this spectrum.

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It's taking spectrum that is being used by state and public local

[00:17:34] Speaker 07:
The statutes are key to whether the broadcaster is a federal entity or not.

[00:17:44] Speaker 04:
I'm sorry, Your Honor.

[00:17:46] Speaker 07:
The statutes, as I understand it, the FCC assigns spectrum to

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non-federal entities and TIA to federal entities.

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So it doesn't, you said what matters is who is already operating in that other band.

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It seems to me what matters in terms of who the regulator is, is the entity federal or not?

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So that and the entities in this band are not federal right now the existing incumbents in the band are state and local public safety entities and it is commission and it is a spectrum that we're sort of going around in circles.

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I mean the the in your view the work around is to enable NTIA I'm sorry is to enable first not to operate in the other band.

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Yes.

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FirstNet is a federal entity.

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Yes.

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The government agency that tells them what bands they can or can't operate in is NTIA.

[00:18:51] Speaker 04:
Yes.

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So what the problem here is is that the commission is circumventing the limitations on its authority.

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And it's doing so with a workaround that is both steps are independently contrary to law because

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The band manager does not qualify for the public safety services exemption under rule 309J.

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And then there is also the problems with the sharing agreement under rule 2.103B because there is no actual consent being provided by the state and local public safety entities.

[00:19:25] Speaker 05:
But the order specifically reserves that any sharing agreement that occurs in the future has to be compliant with the regulation.

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Is that right?

[00:19:34] Speaker 04:
It does.

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And that's why we think it's also sort of arbitrary.

[00:19:37] Speaker 05:
It might not comply, but the commission specifically says that for there to be a sharing agreement, it has to comply with the regulatory requirements.

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Right.

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And that's where we see the commission is really trying to have things both ways.

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On the one hand is trying to claim the public safety service exemption by saying, well, of course, first net's going to be there and first net provides public safety services.

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On the other hand, they're trying to say, oh, actually, we're kind of being tentative about whether the sharing agreement is actually going to happen or not.

[00:20:05] Speaker 04:
That is sort of an additional reason why the commission's decision is arbitrary and capricious.

[00:20:11] Speaker 04:
If I could touch briefly on just the reliance interests at stake here.

[00:20:14] Speaker 05:
Can I just ask you one other statutory question?

[00:20:16] Speaker 05:
Section 1422, which defines the public safety broadband network, doesn't make any mention of the 700 megahertz.

[00:20:27] Speaker 05:
What do you make of that?

[00:20:30] Speaker 05:
Section 1422 says that- Which is what actually defines the network.

[00:20:34] Speaker 05:
Right that the network is it has to ensure the establishment of a nationwide interoperable public safety network and then it talks about all the network components.

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None of which are limited to the band.

[00:20:46] Speaker 04:
Right.

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But I think your honor has to read that provision in concert with all of the other provisions.

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1401, that defines the actual spectrum at issue.

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1411, that says reallocate the 700 megahertz D block spectrum.

[00:21:02] Speaker 05:
1421, that says... But the network itself, you're saying, is limited to that band.

[00:21:08] Speaker 05:
So, I mean, one way to read the statute is Congress creates a network and it assigns it a license.

[00:21:16] Speaker 05:
But does that mean it's exclusive to other share, like that it could never like through contract or some other agreement operate outside that ban?

[00:21:24] Speaker 05:
I think that's the difficulty.

[00:21:27] Speaker 04:
So what is happening here, though, is Congress sort of reallocated 20 megahertz from state and local public safety entities in this statute.

[00:21:37] Speaker 04:
What the commission is doing now with no other statutory authorization is saying, here you go, FirstNet.

[00:21:41] Speaker 04:
Here's another 50 megahertz of spectrum on an entirely different band.

[00:21:46] Speaker 04:
It's worth $15 billion.

[00:21:48] Speaker 04:
This is something that would have been, as I mentioned earlier, very helpful for people who were bidding on the initial contract for

[00:21:55] Speaker 04:
the first net authority to know that it was not just 20 megahertz of spectrum that was going to be at issue, but an additional 50 megahertz and potentially even more under the commission's reasoning, it could allow first net to take over any other bands.

[00:22:09] Speaker 05:
Isn't that 50 megahertz the way you're defining, though?

[00:22:11] Speaker 05:
I mean, not all of that is available for FirstNet to use, right?

[00:22:15] Speaker 05:
It's just the parts that are in the unassigned parts or the unused parts of the spectrum.

[00:22:23] Speaker 04:
So what the commission's order actually says at paragraph 24 is that the band manager will be, and I'm quoting here, the band manager will be authorized to enable FirstNet to operate anywhere within the geographic area of the overlay license.

[00:22:38] Speaker 04:
And then when an incumbent licensee cancels or terminates its license or its license is canceled or terminated for lack of use or something, it is that the spectrum then becomes available for sharing.

[00:22:51] Speaker 05:
But whatever is unused or becomes is later canceled or terminated.

[00:22:55] Speaker 04:
Right.

[00:22:56] Speaker 04:
And that's sort of the independent problems that we have raised about the fact that the whole point of the order is in fact also requiring this license substitution process where incumbents have to forfeit their broad geographic licenses that they have been relying on for years and making investments in the idea that they can expand over time for these narrower site-based licenses.

[00:23:20] Speaker 04:
The effect of that is essentially to make additional unassigned spectrum available for sharing with FirstNet.

[00:23:26] Speaker 04:
And I would encourage the court, for example, to look at the comments that Bart submitted below or the declaration that Bart submitted in support of their stay application to show that, for example, these entities made billion-dollar investments in

[00:23:43] Speaker 04:
in reliance on the idea that they could, in fact, expand over time.

[00:23:48] Speaker 04:
And what the commission says about that, it's really striking, actually, is paragraph 54 of their order.

[00:23:55] Speaker 04:
There's a single line, basically, where they dismiss the reliance interest by saying, we know people might have relied on their licenses to expand over time.

[00:24:04] Speaker 04:
But they tie it only to the fact that the licenses are currently frozen.

[00:24:09] Speaker 04:
And then they say, in fact,

[00:24:11] Speaker 04:
You can seek a waiver if you need, which means that entities like BART that used to be able to move base stations, add new base stations without commission approval, now have to go back to the commission to fulfill their duties.

[00:24:28] Speaker 07:
I think some hard questions on legal authority and maybe some hard questions on reliance

[00:24:38] Speaker 07:
systems like the commission had a very real problem here it was responding to and just on an intuitive level responded in a very reasonable way.

[00:24:51] Speaker 07:
You have this band that's structured in a way that has proven to be suboptimal, it's underutilized, there's a public safety concern.

[00:25:02] Speaker 07:
And what do they do?

[00:25:03] Speaker 07:
They look to an entity that has built up this other public safety ban with Congress's blessing and seems to be working pretty well.

[00:25:13] Speaker 07:
So why is it arbitrary to just replicate in the second ban what FirstNet built up in the first one?

[00:25:22] Speaker 04:
So I think a couple responses to that, Your Honor.

[00:25:25] Speaker 04:
First, I think that is the commission's main argument here is sort of defer to our kind of judgment about spectrum efficiency and how to manage spectrum.

[00:25:37] Speaker 04:
But this isn't about sort of deference to technical expertise.

[00:25:41] Speaker 04:
This is about statutory authority and what's very clear from the spectrum.

[00:25:45] Speaker 00:
I'm on it.

[00:25:47] Speaker 04:
And as to whether it's arbitrary and capricious, what was arbitrary and capricious was dismissing the reliance interests of incumbents without saying more than literally a sentence about it.

[00:25:58] Speaker 04:
And I point the court to, as I said, paragraph 54 of the commission's order.

[00:26:04] Speaker 04:
where all they say, there's no sort of in-sino motor cars weighing of reliance interests or anything like that.

[00:26:10] Speaker 04:
There's simply a, we think that actually this will give us a stable landscape to be able to assess current usage.

[00:26:18] Speaker 04:
And if you're really worried about something, you can get a waiver.

[00:26:21] Speaker 04:
But of course, a waiver does not solve any irrational rule.

[00:26:24] Speaker 04:
We also think, Your Honor, as to what was arbitrary is the commission ignored a lot of the problems with FirstNet.

[00:26:32] Speaker 04:
20 OIG reports about FirstNet's lack of oversight of AT&T, the fact that FirstNet is sunsetting, the fact that FirstNet on the 700 megahertz currently only uses a fraction of that spectrum for public safety.

[00:26:48] Speaker 04:
And in fact, most of it is used for AT&T for its commercial subscribers.

[00:26:52] Speaker 07:
Doesn't the substantial underutilization

[00:26:57] Speaker 07:
at least suggest that there might be structural problems in the way they've handled this market, and the licensees have to deal with all of this potential interference, and that seems to be keeping licensees away from bidding.

[00:27:15] Speaker 07:
And so you have the licenses, but they're not working out all that great for anyone.

[00:27:21] Speaker 04:
So a couple responses to that, your honor.

[00:27:23] Speaker 04:
First, what's kind of interesting is that while the commission talks a lot about underutilization, in fact, what the commission did in this order is for the first time require the granular licensing data from incumbents to be able to tell whether they're actually

[00:27:37] Speaker 04:
is in fact underutilization.

[00:27:39] Speaker 04:
But even assuming that there is underutilization, the way to solve it is not by sort of taking away the broad flexibility that incumbents had to build their systems over time, but is and is not to kind of contravene statutory restrictions on their authority.

[00:28:00] Speaker 04:
We have, you know, in the last order, the commission did adopt sort of a band manager for purposes of frequency coordination, et cetera.

[00:28:09] Speaker 04:
We did not challenge the idea that a band manager could come in and help with frequency coordination.

[00:28:14] Speaker 04:
What we do challenge is the band manager getting a nationwide overlay license and serving as a pass-through of spectrum to FirstNet and its commercial partner, AT&T, giving them a windfall that distorts the competitive marketplace as well.

[00:28:30] Speaker 05:
I just have a could first met in your view contract with incumbents separately when individual basis to share spectrum or to.

[00:28:38] Speaker 05:
help them utilize spectrum or something like that.

[00:28:41] Speaker 04:
So under 2.103B, which is the sharing arrangement, an incumbent could, if it wanted to, it could reach a shared use agreement with FirstNet.

[00:28:54] Speaker 04:
However, what's happening here is that this is being sort of foisted upon incumbents with a band manager providing consent in place of the incumbents, which is not at all what that regulation is meant to provide.

[00:29:06] Speaker 05:
Does the band manager's authority, though, cover licenses that are held by incumbents?

[00:29:13] Speaker 05:
Doesn't it just operate in the spaces where there are non-incumbents operating?

[00:29:17] Speaker 04:
The band manager operates what is called a nationwide overlay license.

[00:29:21] Speaker 04:
So it will sit on top of the incumbents and is also told to work with incumbents to, quote, rationalize their use of spectrum.

[00:29:30] Speaker 04:
So the band manager, it appears this order contemplates, will have some authority over incumbents.

[00:29:36] Speaker 05:
used by being held by an incumbent, the band manager couldn't force them to share with FirstNet, could they?

[00:29:43] Speaker 05:
Like their full licensing authority only occurs in the interstitial spaces where there isn't an incumbent.

[00:29:53] Speaker 05:
At least that's how I understood this.

[00:29:55] Speaker 04:
And those interstitial spaces are also being kind of multiplied by the commission's order.

[00:30:02] Speaker 04:
Yes.

[00:30:02] Speaker 04:
Right.

[00:30:03] Speaker 04:
Yes.

[00:30:04] Speaker 04:
So the band manager is then essentially.

[00:30:06] Speaker 05:
The interstitial spaces are expanding because of the way they are shrinking the incumbent licenses.

[00:30:10] Speaker 05:
But they couldn't force the incumbents to share.

[00:30:13] Speaker 05:
The band manager couldn't force the incumbents to share what is actually within their license.

[00:30:19] Speaker 04:
I think that's right, Your Honor.

[00:30:21] Speaker 04:
But sort of what I'm trying to get at is that

[00:30:24] Speaker 04:
in the current status quo, they do have spectrum that the band manager will be forcing them to share because they are going to forfeit their geographic license for these narrower, smaller site-based licenses that the band manager will then get access to spectrum.

[00:30:41] Speaker 04:
So the FCC is creating more spectrum

[00:30:45] Speaker 05:
that the band manager can then use to share with FirstNet.

[00:30:48] Speaker 05:
So your objections are in some ways all interconnected.

[00:30:51] Speaker 05:
Yes.

[00:30:53] Speaker 07:
The regulation seems like a very odd fit for what's going on here.

[00:31:01] Speaker 07:
Do you imagine a

[00:31:03] Speaker 07:
The non work around situation which is federal entity.

[00:31:09] Speaker 07:
Federal entity wants to use public safety bands with non federal entities this band is structured so that how many licensees are there within this 4.9.

[00:31:21] Speaker 04:
There are currently about 3,500 state and local public safety entities, many of which hold statewide or countywide licensees.

[00:31:28] Speaker 07:
And Trong, too, says the federal entity has to get consent from the licensees involved.

[00:31:33] Speaker 07:
Right.

[00:31:34] Speaker 07:
Unanimous consent from 3,500 licensees.

[00:31:39] Speaker 07:
The reg just doesn't seem to fit.

[00:31:42] Speaker 04:
So what the rule contemplates is, to Judge Rao's point earlier, right now, if an incumbent actually wanted to share a spectrum with FirstNet, it could do so under 2.103b, where there actually was sort of mutual agreement.

[00:32:01] Speaker 04:
What's happening is that the commission is using this.

[00:32:04] Speaker 07:
You've got this weird public safety specific

[00:32:09] Speaker 07:
scheme where you don't have individual licensees on defined spectra.

[00:32:16] Speaker 07:
You have 3,500 of them allowed to operate anywhere in the band.

[00:32:21] Speaker 04:
Well, they hold licenses for their geographic areas.

[00:32:25] Speaker 04:
So for example, a sheriff would hold a license for their legal jurisdiction, or part holds a license for its five counties.

[00:32:35] Speaker 04:
And so what is happening here is the commission is relying on this sharing arrangement regulation to basically have the band manager, who is not a state or local licensee, provide consent

[00:32:50] Speaker 04:
to share with FirstNet.

[00:32:52] Speaker 04:
So I think, Your Honor, is correct that it is a very odd fit for what is actually happening here.

[00:32:57] Speaker 04:
And that may be why the commission sort of punts on whether 2.103B would actually be satisfied by this arrangement, although that is, again, kind of arbitrary because the commission is elsewhere relying on the fact that FirstNet is going to be in the band and providing services.

[00:33:17] Speaker 06:
All right, thank you.

[00:33:18] Speaker 06:
We'll give you some time on rebuttal.

[00:33:32] Speaker 06:
Overfold.

[00:33:33] Speaker 08:
Martin Yaronik.

[00:33:35] Speaker 08:
Excuse me.

[00:33:37] Speaker 08:
Life Overfold on behalf of the Public Safety Spectrum Alliance and the Public Safety Broadband Technology Association.

[00:33:43] Speaker 08:
PSSA and PSVTA come at this case from a diametrically opposed perspective from the CSERC petitioners.

[00:33:49] Speaker 08:
The FCC did have the authority to issue an overlay license to the 4.9 GHz band to the band manager and authorize the band manager to enter into a sharing agreement.

[00:33:59] Speaker 08:
with FirstNet.

[00:34:01] Speaker 08:
And its decision to do so was amply justified by the commission's recognition for over a decade that the 4.9 gigahertz band has been grossly underutilized.

[00:34:09] Speaker 08:
One study in the record estimates that more than 90% of this important public safety resource has not been used during the time that the commission has set it up for that use.

[00:34:20] Speaker 05:
Can we talk about standing for PSSA petitioners?

[00:34:28] Speaker 05:
sure that the standing theory is entirely apparent in your opening brief.

[00:34:33] Speaker 05:
And even with the additional material in the reply brief, I guess I'm wondering, where's the redressability?

[00:34:41] Speaker 05:
So the primary claim of PSSA is that the commission should have gone further.

[00:34:47] Speaker 05:
But you're not bringing like a

[00:34:49] Speaker 05:
agency action unlawfully withheld claim or something like that, which you really couldn't do because they're not required to do anything in this space.

[00:34:57] Speaker 05:
So where's the redressability?

[00:35:00] Speaker 05:
The theory of redressability for wanting an agency to do more.

[00:35:04] Speaker 08:
So under the APA, the FCC has to explain the lines it drew.

[00:35:08] Speaker 08:
And the entire thrust of the order is that making the spectrum potentially available to the first net through a sharing agreement is the best way to robustly ensure deployment on this long underutilized resource.

[00:35:23] Speaker 08:
The lines that the agency drew in the rule, it does not explain.

[00:35:27] Speaker 08:
For one of our comments, one of the reasons this band has been underutilized for quite a while is these non-exclusive

[00:35:34] Speaker 08:
overlapping, uncoordinated geographic licenses.

[00:35:38] Speaker 08:
The FCC acknowledged that we made that comment.

[00:35:41] Speaker 08:
It didn't offer any substantive response at all.

[00:35:44] Speaker 08:
If the court sends that back for the FCC to consider that question, it could very well agree with us that these geographic licenses are part of what's contributing to underutilization.

[00:35:56] Speaker 08:
Yeah, I mean, we are being injured by disorder not being taken, not being given a full effect as quickly as possible.

[00:36:04] Speaker 08:
So we would ask for remand without vacant or because they get much of what the rule does, does do important work to sort of

[00:36:11] Speaker 05:
You presumably don't want the rule vacated because you want the rule to go further.

[00:36:14] Speaker 08:
We want the underutilization of this ban to be addressed as quickly as possible.

[00:36:19] Speaker 08:
And I mean, in the FCC's brief, we're talking about two territories and four states, but no one thinks there's only unused spectrum in this band in two territories and parts of four states.

[00:36:30] Speaker 08:
There is a lot of white spaces.

[00:36:32] Speaker 08:
The entire thrust of the rule is that allowing first net access to that spectrum, they can put it to productive use they've already created.

[00:36:40] Speaker 08:
this national network that at the time of the rule over 6 million users were on were now almost 8 million.

[00:36:46] Speaker 05:
Redressability is tough though where you want the agency to do something rather than not do something.

[00:36:51] Speaker 05:
So when a party comes and says well the agency didn't explain why it is doing something then like a remand

[00:37:00] Speaker 05:
I mean, the redressability seems a little more obvious than when a party is saying, we want the agency to do more.

[00:37:07] Speaker 05:
And the do more is things that are within the FCC's discretion, not a statutory requirement.

[00:37:15] Speaker 08:
I still think the court has to look at how the FCC explained the lines it drew and on sort of our other main objection, which is that rather than saying that once they've identified spectrum that's not being used by incumbent licensees, you should immediately allocate that to the overlay license.

[00:37:30] Speaker 08:
They reserve judgment.

[00:37:32] Speaker 08:
That does have concrete effects.

[00:37:33] Speaker 08:
People were reporting their granular data in July of this year.

[00:37:37] Speaker 08:
At that time, that

[00:37:39] Speaker 08:
unused spectrum could be immediately moved into the overlay license.

[00:37:44] Speaker 08:
Instead, the FCC, again, no one disputes that there is unused spectrum out there, but they reserve judgment on the policy determination about what they're going to do with that without any sort of a reason given in the order.

[00:37:57] Speaker 05:
Well, their reason was sort of a one step at a time sort of reason.

[00:38:01] Speaker 05:
It's taking things incrementally, which we have a number of cases saying is permissible.

[00:38:06] Speaker 08:
But even when an agency is moving incrementally, no one disputes that is often a reasonable way to proceed.

[00:38:12] Speaker 08:
You have to give some reason why you're choosing to proceed beyond simply, I would prefer not to take the additional step.

[00:38:19] Speaker 08:
I mean, it's often reasonable.

[00:38:21] Speaker 08:
That does not mean it's categorically reasonable not to take a step.

[00:38:24] Speaker 08:
And when you look at this order, the entire thrust of the order, again, is that moving this unused spectrum to use not in this sort of balkanized system of overlapping geographic licenses, but making it available to FirstNet, which has

[00:38:36] Speaker 08:
already built out a nationwide broadband spectrum for use by public safety users.

[00:38:41] Speaker 08:
That's the entire sort of thrust of the rule.

[00:38:44] Speaker 08:
And they don't offer any explanation for why you would find that explanation was we need data.

[00:38:49] Speaker 06:
And that's part of what the order provided was this system of collection of data so that that could be evaluated and they could, you know, then regulate further once they get the data.

[00:39:03] Speaker 08:
Well, so there are two questions.

[00:39:05] Speaker 08:
And FCC indicated they needed data for one.

[00:39:08] Speaker 08:
And that's the question of, where is the areas of unused spectrum that could be put to more productive use if you enter into a sharing agreement with FirstEd?

[00:39:17] Speaker 08:
The question we think they should have decided in this order is, once you've identified that spectrum, should you make it available to the overlay license?

[00:39:26] Speaker 08:
You don't need any data to make that policy determination.

[00:39:29] Speaker 08:
And they didn't identify any reason why

[00:39:33] Speaker 08:
you would not.

[00:39:34] Speaker 08:
Again, given we agree with the vast majority of what the FCC is doing here, but when the entire thrust of the rule is that putting this on use spectrum to use by first net will allow many more public safety users to make productive use of this.

[00:39:49] Speaker 08:
important public resource, they have to do more to explain why you would just limit the effect of that rule to the handful of people on the site.

[00:39:58] Speaker 06:
What case do you have that says that the agency identifies a problem, it has to solve the whole problem rather than dealing with solving it incrementally?

[00:40:16] Speaker 08:
We acknowledge agencies can proceed incrementally.

[00:40:19] Speaker 08:
It's often reasonable to do that.

[00:40:20] Speaker 08:
Again, it's a question of providing some reasonable explanation for why you are not taking an additional step.

[00:40:26] Speaker 08:
And in this order, I mean, it's just a parent value of extending it.

[00:40:32] Speaker 06:
The President says you don't have to solve the whole problem all at once.

[00:40:38] Speaker 06:
You can proceed incrementally.

[00:40:40] Speaker 06:
Why do they even have to say that?

[00:40:43] Speaker 06:
We all know that.

[00:40:45] Speaker 08:
Well, again, this is why it's often reasonable to proceed incrementally, but that does not mean it's categorically reasonable.

[00:40:51] Speaker 08:
And we're talking about an important spectrum that has been dedicated for public safety use for over two decades.

[00:40:57] Speaker 08:
The FCC has been recognizing since 2012 that the spectrum is not being put to use the use it hoped it would be when it initially set this aside in 2002.

[00:41:08] Speaker 08:
And it also recognizes, I mean, this is important broadband services that first responders can use to provide life saving services.

[00:41:15] Speaker 08:
The FCC should do something more than just say that it would prefer not to take that additional step now.

[00:41:23] Speaker 06:
All right.

[00:41:24] Speaker 06:
Thank you.

[00:41:25] Speaker 06:
We'll give you some on rebuttal.

[00:41:29] Speaker 06:
Thank you.

[00:41:40] Speaker 06:
Good morning, Mr. Kandu.

[00:41:42] Speaker 02:
Good morning, Dr. Wilkins.

[00:41:44] Speaker 02:
May I please the court, Adam Kandu, for respondents.

[00:41:47] Speaker 02:
This case goes to the heart of Commission authority.

[00:41:50] Speaker 02:
It's statutory duty to license our nation's spectrum and ensure efficient and effective use of that spectrum.

[00:41:57] Speaker 02:
In the order on the review, the Commission uses this authority to make an important but incremental step

[00:42:05] Speaker 02:
To solve a problem that is faced for nearly a decade and a half, the persistent underutilization of the 4.9 band.

[00:42:13] Speaker 02:
And the commission does three things in this challenged order.

[00:42:16] Speaker 02:
It assigns the band manager, when it is selected, a license for Spectrum, which is now unassigned.

[00:42:23] Speaker 02:
It authorizes the band manager to initiate a sharing agreement for this licensed spectrum.

[00:42:28] Speaker 02:
And last, the commission recognizes that FirstNet entering into this agreement will increase band utilization, enhance public safety coordination, and encourage advanced technological deployment.

[00:42:41] Speaker 07:
The whole point of this order is to enable FirstNet to use this other band of spectrum, correct?

[00:42:53] Speaker 02:
It's not simply to allow first not to use the unassigned parts of the spectrum.

[00:42:59] Speaker 07:
It is at least.

[00:43:01] Speaker 02:
It is certainly at least.

[00:43:02] Speaker 02:
But we should remember the band manager is playing important coordination functions that respond to the problems that have been facing the band.

[00:43:10] Speaker 02:
for a decade and a half, which is we have a bunch of unlicensed users who can't coordinate, who are constantly having interference connection problems, and we don't have one centralized authority who can coordinate this and resolve disputes.

[00:43:25] Speaker 07:
And with that authority- Sure, the band manager has

[00:43:29] Speaker 07:
some regulatory-like command and control responsibilities.

[00:43:36] Speaker 07:
But again, the main point of this order is to allow FirstNet to use Spectrum.

[00:43:44] Speaker 07:
And with regard to that, the band manager, it's this very weird arrangement where they are the licensee, but they are specifically not allowed to use Spectrum.

[00:43:58] Speaker 07:
So the only point of this is to create a non-federal entity to bring this within the FCC jurisdiction to license a federal entity to use a different band of spectrum.

[00:44:11] Speaker 02:
Well, you should remember that FirstNet is not the licensee.

[00:44:15] Speaker 02:
It shares spectrum with the licensee who's the band manager.

[00:44:18] Speaker 07:
Could FirstNet have just come to the FCC and asked for an overlay license in the 4.9 gigahertz band?

[00:44:29] Speaker 02:
Well, that question isn't present and that's not the way they are curious to get your answer.

[00:44:35] Speaker 02:
It goes to a difficult question of FCC authority.

[00:44:40] Speaker 02:
Certainly, Section 305 would present serious legal questions as to whether or not they... But here we're sharing, and it's not an unusual or freakish arrangement.

[00:44:54] Speaker 02:
Sharing with federal entities for public safety, as the order cited in the brief says, goes back to 1998, over two decades.

[00:45:02] Speaker 02:
And it's because it allows for coordination of public safety and law enforcement.

[00:45:08] Speaker 02:
And it allows for more granular sharing that doesn't require a meeting of the FCC and NTIA.

[00:45:14] Speaker 07:
It makes a lot of sense.

[00:45:16] Speaker 07:
But there's an antecedent legal question about which federal agency has to authorize and gets to oversee the arrangement.

[00:45:29] Speaker 07:
And the statutory scheme just seems key to whether the licensee is or is not a federal entity.

[00:45:38] Speaker 02:
Correct.

[00:45:40] Speaker 02:
But again, the sharing has existed in other places.

[00:45:45] Speaker 02:
We've had federal sharing of state and license and FCC license spectrum in many situations.

[00:45:53] Speaker 02:
It's not that unusual.

[00:45:55] Speaker 02:
Furthermore, as far as oversight, this is a cooperation between NTIA and the FCC.

[00:46:00] Speaker 02:
Remember that FirstNet is a

[00:46:03] Speaker 02:
subsidiary of NTIA.

[00:46:06] Speaker 02:
NTIA picks its board and runs its management.

[00:46:09] Speaker 07:
Does NTIA oversee FirstNet in the way that the FCC oversees its non-federal licensees?

[00:46:25] Speaker 07:
I mean, you allocate the spectrum on the front end, but then you have all sorts of ongoing oversight issues.

[00:46:31] Speaker 07:
So who does that?

[00:46:33] Speaker 07:
For federal, just for FirstNet in the 7,000 band.

[00:46:37] Speaker 02:
Right.

[00:46:37] Speaker 02:
Who does that?

[00:46:38] Speaker 02:
Well, FirstNet is a... NTIA.

[00:46:41] Speaker 02:
Yeah, NTIA does, correctly.

[00:46:43] Speaker 02:
And so NTIA is regulating this.

[00:46:45] Speaker 02:
Again, they were aware of this agreement.

[00:46:48] Speaker 02:
They acquiesced to it.

[00:46:49] Speaker 07:
So your position...

[00:46:52] Speaker 07:
is that at no point in this process will NTIA have to separately license or sign off or approve in any formal way.

[00:47:06] Speaker 07:
When you, A, identify the band manager, and B, approve the contemplated sharing agreement.

[00:47:14] Speaker 07:
I think your position is FCC is going to do all of that.

[00:47:18] Speaker 07:
NTIA is not.

[00:47:19] Speaker 02:
Well, I think first, then,

[00:47:21] Speaker 02:
Well, NTIA, through its oversight of First and Ant, would certainly be involved in all those decisions.

[00:47:29] Speaker 02:
And also, I would remind the court that the tradition of the relationships between NTIA and FCC in the spectrum allocation has always been an informal relationship.

[00:47:41] Speaker 02:
It has been one in which we sort of agree what makes sense and go forward and has worked fairly well for a long time.

[00:47:48] Speaker 06:
What statute or regulation

[00:47:51] Speaker 06:
Can you point me to that says that NTIA will be involved?

[00:48:01] Speaker 02:
I would point generally to the organic statute that creates FirstNet, which places it under NTIA authority.

[00:48:09] Speaker 02:
NTIA is involved with the appointment of all of its board members.

[00:48:14] Speaker 02:
It has oversight authority.

[00:48:16] Speaker 02:
It looks at what it's doing and to ensure that it's maintaining itself.

[00:48:22] Speaker 06:
What does any of that have to do with involvement with the FCC's decision?

[00:48:28] Speaker 06:
of selecting the band manager, et cetera?

[00:48:34] Speaker 02:
Well, under the system, the band manager will be done through the FCC.

[00:48:40] Speaker 02:
So the short answer is that, you know, NTIA and the NTIA and FirstNet will not be intimately involved with that decision.

[00:48:50] Speaker 07:
I mean, the closest thing I found

[00:48:56] Speaker 07:
to address Judge Wilkins' question on NTIA involvement is a statement buried in footnote 159 of your order in which you report that NTIA is fine with just letting FCC do all this.

[00:49:14] Speaker 02:
Right.

[00:49:14] Speaker 02:
As I said, NTIA did acquiesce to this situation and it was on an informal basis.

[00:49:21] Speaker 02:
That's the way we've been doing business.

[00:49:23] Speaker 02:
And due to the difficulties and subtleties of some of the negotiation, it has worked fairly well.

[00:49:30] Speaker 07:
And you think that satisfies the statutory scheme, which says NTIA has to allocate Spectrum to FirstNet?

[00:49:41] Speaker 02:
Correct.

[00:49:42] Speaker 02:
And that these sharing systems and agreements have been around for decades and they seem to work.

[00:49:53] Speaker 06:
Seem to work and being legal are two different things.

[00:50:00] Speaker 02:
Well, they seem to further advance an efficient use of the spectrum.

[00:50:05] Speaker 02:
I think that, you know, in general, the basic questions about spectrum allocation, what is federal, what is licensed, is worked out through an informal agreements between the FCC and NTIA.

[00:50:21] Speaker 05:
Which are both part of the executive branch after all.

[00:50:24] Speaker 05:
I'm sorry, ma'am.

[00:50:24] Speaker 05:
Which are both part of the executive branch after all.

[00:50:27] Speaker 02:
Yes, that's right.

[00:50:30] Speaker 02:
This is the way that the system has worked and I think the record is good as far as moving the system to a more efficient use.

[00:50:39] Speaker 05:
Can I ask you a question about how we interpret this order?

[00:50:43] Speaker 05:
It seems that FCC in its brief is suggesting that

[00:50:50] Speaker 05:
The unassigned spectrum that the band manager shares with FirstNet is only the spectrum that was never assigned, I guess, like either the part or whole of those six states and territories, something like that.

[00:51:02] Speaker 00:
Yes.

[00:51:05] Speaker 05:
But doesn't the order free up additional spectrum by making the incumbent licenses, I guess, smaller in a way?

[00:51:15] Speaker 05:
So there's spectrum that's freed up from the relicensing.

[00:51:20] Speaker 05:
And so isn't that now part of the unassigned spectrum that is going to be part of the overlay license?

[00:51:27] Speaker 05:
I mean, it seems that that has to be right.

[00:51:29] Speaker 05:
If those licenses are, in fact,

[00:51:31] Speaker 05:
reducing spectrum use by incumbents, now that spectrum is unassigned and would go to the overlay license.

[00:51:38] Speaker 02:
Is that right?

[00:51:39] Speaker 02:
Respectfully, no.

[00:51:41] Speaker 02:
Okay.

[00:51:42] Speaker 02:
And I would refer the court to paragraph 59 of the order, where we make clear that unused spectrum

[00:51:49] Speaker 05:
Not unused, unassigned spectrum, which is different, right?

[00:51:54] Speaker 02:
That's right.

[00:51:55] Speaker 02:
But it does come to your question.

[00:51:57] Speaker 02:
So there's only a few areas of unassigned spectrum that nobody has a license at the time the order was written to use.

[00:52:05] Speaker 02:
And those are the areas in the four states and two territories.

[00:52:09] Speaker 02:
And then there is what we call the unused portion.

[00:52:12] Speaker 02:
So what the order did is said, look, incumbents,

[00:52:17] Speaker 02:
One of the primary purposes of this order is to respect your current operations.

[00:52:20] Speaker 02:
We don't want to interfere with what you're doing at all.

[00:52:23] Speaker 02:
But you have to freeze because one of the problems why we need you to solve this data collection is because we have no visibility into what's going on in the spectrum.

[00:52:33] Speaker 02:
So, for instance, let's say there's a state trooper, a state trooper's office who has license for the entire state.

[00:52:40] Speaker 02:
They could be using it for one temporary point to point communication, just one little strip of territory in the entire state, and the rest of it's fallow.

[00:52:53] Speaker 02:
And right now the commission doesn't know that.

[00:52:55] Speaker 02:
It can't tell that.

[00:52:56] Speaker 02:
So what it said is, look, freeze.

[00:52:59] Speaker 02:
And the areas that you're not using will be considered unused.

[00:53:03] Speaker 02:
And you can't build into that area until the freeze is over, until we collect information, we know what we're doing.

[00:53:09] Speaker 02:
And then you may get it back or we might, the commission might decide that it should be repurposed.

[00:53:17] Speaker 05:
So the relicensing doesn't create any unassigned spectrum.

[00:53:23] Speaker 05:
It only creates unused spectrum?

[00:53:25] Speaker 05:
That's right.

[00:53:25] Speaker 02:
It is.

[00:53:27] Speaker 02:
This is not a technical term, but it's kind of in a limbo.

[00:53:29] Speaker 02:
And what we're saying is the commission has to look at this.

[00:53:32] Speaker 02:
But it has not reassigned that.

[00:53:33] Speaker 02:
It doesn't have anyone.

[00:53:34] Speaker 02:
No one else has.

[00:53:36] Speaker 05:
And the new licenses don't make any of that spectrum unassigned?

[00:53:41] Speaker 02:
No, they don't make it unassigned.

[00:53:43] Speaker 02:
The BAM manager right now is limited to those

[00:53:47] Speaker 02:
areas, and it would take some type of further commission action to make those unused into unassigned.

[00:53:54] Speaker 02:
And at that point, I know I'm not supposed to concede anything, but at that point, that's when Cersei could come in and say, look, you've done something to our licenses.

[00:54:04] Speaker 02:
But right now, this serve in a limbo, it's in a freeze, and we have to collect information because we just don't know what's going on.

[00:54:13] Speaker 07:
Seems.

[00:54:14] Speaker 07:
Pretty unlikely, though, given the thrust of this order, that this might be headed towards, oh, never mind, we'll just let the licensees go on as before.

[00:54:29] Speaker 02:
Well, yes.

[00:54:30] Speaker 02:
I mean, in the sense that, well, I would certainly agree that it will be different.

[00:54:35] Speaker 02:
But again, the whole purpose of the data collection is to find out what's going on.

[00:54:40] Speaker 02:
And I couldn't say.

[00:54:41] Speaker 02:
It is certainly possible that everything will go on before.

[00:54:44] Speaker 02:
It could also be that there's a huge amount of unused spectrum that commission finds could be used more effectively.

[00:54:53] Speaker 05:
Can I ask you a question about the contrary to law arguments that the CSERC petitioners make?

[00:54:58] Speaker 05:
So they say FirstNet can't operate outside of the license area that was specifically conferred by Congress, and that's the best way to read the Spectrum Act.

[00:55:09] Speaker 05:
And in response, the FCC just points to a lot of general authorities that it has.

[00:55:14] Speaker 05:
which frankly I never find all that persuasive.

[00:55:17] Speaker 05:
It's like, oh, we can do anything we want in the public interest.

[00:55:19] Speaker 05:
So obviously we can do this.

[00:55:21] Speaker 05:
But I guess I'm wondering why the FCC doesn't rely on the specific contracting authority in the Spectrum Act.

[00:55:26] Speaker 05:
Is there something about that contracting authority that FirstNet has that doesn't make it a basis for the sharing agreements?

[00:55:36] Speaker 05:
Like, is there something?

[00:55:36] Speaker 05:
Because to me, just the plain meaning of FirstNet has legal authority to enter into contracts with a whole range of public and private entities.

[00:55:45] Speaker 05:
suggests that it would have authority to enter into a sharing agreement with the band manager.

[00:55:50] Speaker 05:
But maybe there's some reason why that isn't my misunderstanding what that statutory authority means.

[00:55:56] Speaker 05:
The MCC doesn't rely on those provisions.

[00:55:58] Speaker 05:
And so I just want to understand if there's some reason why, a misreading.

[00:56:02] Speaker 02:
Right.

[00:56:03] Speaker 02:
Well, it could be.

[00:56:05] Speaker 02:
We just haven't thought it out.

[00:56:07] Speaker 02:
But I think our point would be that the band manager is the licensee.

[00:56:12] Speaker 02:
So the band manager has a sharing agreement with FirstNet.

[00:56:15] Speaker 02:
FirstNet... A sharing agreement is a contract.

[00:56:18] Speaker 02:
That's right.

[00:56:18] Speaker 02:
It is sharing.

[00:56:21] Speaker 02:
It is a contract.

[00:56:23] Speaker 02:
But we're not regulating FirstNet directly.

[00:56:28] Speaker 02:
So you're right.

[00:56:29] Speaker 02:
FirstNet's authority to enter into the agreement with the band manager would be governed by that.

[00:56:34] Speaker 02:
Yes.

[00:56:35] Speaker 05:
One of the arguments the source the petitioners makes is that FirstNet has no legal authority to do this.

[00:56:40] Speaker 05:
and that it's outside the Spectrum Act, which is different from saying the FCC lacks authority under the Communications Act.

[00:56:46] Speaker 05:
That's right.

[00:56:47] Speaker 02:
I think it's just really a matter of

[00:56:51] Speaker 02:
The commission believes there's specific regulatory authority, namely that found in 2.103, that directly addresses the situation.

[00:56:59] Speaker 05:
And that should be... But that regulation wouldn't answer the question whether... Like if FirstNet lacked statutory authority to do that, it couldn't gain that authority from regulation.

[00:57:09] Speaker 02:
True.

[00:57:09] Speaker 02:
But no, I agree.

[00:57:10] Speaker 05:
I mean, I think that's a... There's no reason to think that the contracting authority wouldn't cover something.

[00:57:14] Speaker 02:
No, absolutely not.

[00:57:16] Speaker 05:
Okay.

[00:57:17] Speaker 05:
Thank you.

[00:57:20] Speaker 06:
All right, if you have any final points you'd like to make, you can make those.

[00:57:26] Speaker 02:
I would just respectfully ask that the court dismiss the traditional review.

[00:57:32] Speaker 02:
Thank you very much.

[00:57:33] Speaker 06:
Thank you.

[00:57:34] Speaker 06:
Mr. Turner.

[00:57:46] Speaker 01:
Good morning, Your Honors.

[00:57:47] Speaker 01:
Joshua Turner, may it please the Court, Joshua Turner on behalf of the Fraternal Order of Police.

[00:57:53] Speaker 01:
FOP represents more than 370,000 officers across the country in communities, both small and large, and they understand how important public safety communication, especially broadband public safety communication is.

[00:58:06] Speaker 01:
That's why we're here today enthusiastically supporting the FCC's order because as Judge Cassis, you mentioned this has been an ongoing problem in terms of utilization of the 4.9 gigahertz band.

[00:58:18] Speaker 01:
That band is currently 90% unoccupied according to the record.

[00:58:23] Speaker 01:
The FCC is collecting some granular data about exactly where that lack of occupation is, but the record shows that for years this band has not lived up to its promise.

[00:58:33] Speaker 01:
In contrast to FirstNet.

[00:58:35] Speaker 01:
FirstNet has worked exactly as Congress intended.

[00:58:38] Speaker 01:
FirstNet has created a nationwide public safety broadband network that FOP members and other public safety professionals are using every day.

[00:58:46] Speaker 07:
What does the record show one way or the other about whether that FirstNet band, the 7,000, it does or does not suffice to enable your super important communications?

[00:59:01] Speaker 01:
The 700 megahertz band was set aside by Congress for the initial purpose of this public safety broadband network.

[00:59:10] Speaker 01:
The record shows FirstNet

[00:59:12] Speaker 01:
I believe in 2013 filed comments in the record saying, we could make use of the 4.9 gigahertz band.

[00:59:20] Speaker 01:
We could use that to provide broadband services.

[00:59:22] Speaker 01:
And as we get more built out and as we push into other newer areas, we will have the need for this additional spectrum to provide 5G and other broadband services.

[00:59:34] Speaker 01:
So that is in the record.

[00:59:36] Speaker 01:
One of the things that your honors have focused on, which I think is very important, is this question of the band manager and authority.

[00:59:45] Speaker 01:
You know, my counsel for CSERC says this is just a workaround, right?

[00:59:50] Speaker 01:
This is just the FCC trying to do something that

[00:59:52] Speaker 01:
it doesn't have the authority to do.

[00:59:54] Speaker 01:
But that's not actually what's going on here.

[00:59:56] Speaker 01:
The band manager has a number of different roles that it plays, one of which is coordinating the spectrum use between incumbents.

[01:00:04] Speaker 01:
Another, the FCC has added in the order under review, is to coordinate spectrum use with FirstNet and to coordinate this national overlay license so that FirstNet can use it.

[01:00:15] Speaker 01:
The question of where FirstNet gets the authority to do that is of course a good one.

[01:00:19] Speaker 01:
That comes from Section 305 of the Communications Act, which delegates to the president the ability to decide how federal agencies and other federal users use the spectrum.

[01:00:31] Speaker 07:
And then later sub-delegated or sub-delegated to NTIA.

[01:00:35] Speaker 01:
Yes.

[01:00:36] Speaker 01:
But the president ultimately is the one who has to control federal use of the spectrum.

[01:00:40] Speaker 01:
That's the sort of setup, the bilateral setup that is set up by the Communications Act.

[01:00:47] Speaker 01:
Broad authority for the FCC to determine what should be done with non-federal uses.

[01:00:51] Speaker 01:
And the federal government is, the federal use is controlled by the president.

[01:00:55] Speaker 01:
And that's what's going to happen here.

[01:00:57] Speaker 01:
FirstNet's authority to operate in this spectrum will ultimately be at the discretion of the president.

[01:01:03] Speaker 01:
If NTIA or the president decides that FirstNet should not use this spectrum, FirstNet will not be allowed to use this spectrum.

[01:01:10] Speaker 01:
This is not the same as if FirstNet were being granted a license by the FCC.

[01:01:14] Speaker 01:
That's the critical legal distinction here, and it's one that I think answers, I hope, the court's questions.

[01:01:21] Speaker 07:
Well, but I thought the FCC's position is that

[01:01:26] Speaker 07:
that determination by the president or NTIA is unnecessary.

[01:01:33] Speaker 07:
All we need to do is think of this as the FCC licensing the non-federal entity, which then contracts with someone.

[01:01:44] Speaker 01:
I don't think that that's the, I obviously can't speak for the FCC.

[01:01:48] Speaker 01:
I don't think that that's the FCC's position and I don't think that's how this will work in practice.

[01:01:53] Speaker 01:
What the FCC has done is exercise its broad general authority.

[01:01:57] Speaker 07:
I feel much better about this if there's some point down the road at which we know that NTIA will formally review this and sign off or not.

[01:02:09] Speaker 01:
Well, the memorandum of understanding between the FCC and NTIA contemplates exactly the kind of spectrum sharing arrangements and exactly the kind of collaborative effort that the FCC is engaging in here.

[01:02:24] Speaker 01:
But ultimately, Your Honor, the question of whether or not the federal government authorizes FirstNet to use this spectrum is one for the president to make.

[01:02:34] Speaker 01:
And Your Honor is exactly right.

[01:02:36] Speaker 01:
I mean, there may come a point where the president, for whatever reason, decides that NTIA is not going to authorize this.

[01:02:42] Speaker 01:
And that FirstNet is not going to move forward with the band manager arrangement.

[01:02:45] Speaker 01:
They aren't going to enter into the contract with the band manager to share this spectrum.

[01:02:50] Speaker 01:
That is something that is certainly the president's prerogative.

[01:02:53] Speaker 01:
And the FCC is not claiming, at least as I understand the order, that FirstNet, that it has authorized FirstNet to operate in this spectrum absent presidential authority.

[01:03:04] Speaker 07:
I mean, even if you assume

[01:03:08] Speaker 07:
a unitary executive, including the FCC, 100% accountable to the president, Congress can still assign a decision to one agency or another to state rather than Treasury, both of whom answer to the president.

[01:03:25] Speaker 07:
And if they assign it to state, it's state that has to make the decision.

[01:03:29] Speaker 07:
Certainly, Your Honor.

[01:03:30] Speaker 07:
And without presidential direction.

[01:03:32] Speaker 01:
No, no, absolutely, your honor.

[01:03:33] Speaker 01:
And to be clear, I'm not making an argument based on unitary executive in one way or another, because I think what's happening here is that the way that the Communications Act has apportioned responsibility is being respected.

[01:03:44] Speaker 01:
The FCC is taking the action that it needs to take to make this spectrum available for use by the federal government, right, in a shared basis.

[01:03:53] Speaker 01:
And that's something that the commission has done going back decades.

[01:03:57] Speaker 01:
The Bendix case we cite in our briefs goes back to 1960, where the commission makes non-federal spectrum available for federal use.

[01:04:07] Speaker 01:
So that's what the commission is doing here.

[01:04:08] Speaker 01:
That's the commission's role.

[01:04:10] Speaker 01:
NTIA's role and FirstNet's role is to come in and operate in that band pursuant to the FCC making the band available for that kind of sharing.

[01:04:21] Speaker 01:
But they're doing it under their organic authority.

[01:04:23] Speaker 01:
They're doing it under the authority granted by Section 305 and by the Spectrum Act.

[01:04:28] Speaker 01:
And Judge Rao, I think you were exactly right.

[01:04:30] Speaker 07:
Which require assignment of that spectrum to FirstNet by NTIA.

[01:04:44] Speaker 01:
The Spectrum Act requires assignment of... No, just 305.

[01:04:47] Speaker 01:
Oh, sorry.

[01:04:48] Speaker 01:
Forget about this.

[01:04:50] Speaker 01:
So section 305 says that the president has the discretion to assign frequency use by federal agencies, yes.

[01:04:58] Speaker 01:
And not FCC.

[01:04:59] Speaker 01:
Not FCC.

[01:05:01] Speaker ?:
Right.

[01:05:01] Speaker 01:
But the FCC has the ability to make what is otherwise non-federal spectrum available for federal use as long as that use is under the auspices of the president under Section 305, which is what's happening here.

[01:05:14] Speaker 01:
So the FCC can say any non-federal spectrum that the FCC has control over, the FCC can say we're going to make this available for federal use too.

[01:05:22] Speaker 01:
We're not

[01:05:24] Speaker 01:
directing the federal government to use this spectrum.

[01:05:27] Speaker 01:
We're not requiring them to do it.

[01:05:28] Speaker 01:
We don't have the authority to do that.

[01:05:30] Speaker 01:
We're making the spectrum available for federal use should the president decide that he wants to use that spectrum for whatever purposes he wants to use it.

[01:05:38] Speaker 06:
Now, what in the order requires presidential action or finding before that is implemented?

[01:05:47] Speaker 01:
Well, the order contemplates that there will be the band manager and the band manager will enter into a sharing agreement with FirstNet and that won't take effect until FirstNet and the band manager reach the sharing agreement.

[01:06:03] Speaker 01:
So that's the sort of point at which the executive in the guise of NTIA and FirstNet

[01:06:09] Speaker 01:
have agreed to use the spectrum that had been made available to them by the FCC in the guise of this band manager.

[01:06:17] Speaker 01:
So that's the point, Your Honor, where there's sort of federal action, presidential action.

[01:06:25] Speaker 01:
And I don't think there's anything that requires any particular mechanism by which the president decides to utilize or assign spectrum.

[01:06:35] Speaker 01:
Certainly Section 305 does.

[01:06:37] Speaker 01:
Section 305 just says it's up to the president to decide how to do it.

[01:06:41] Speaker 01:
I don't think that the commission has to say, we need a presidential finding before we make this available.

[01:06:46] Speaker 01:
I don't think there's anything in the law that requires that.

[01:06:48] Speaker 01:
Certainly, Section 1422 does not.

[01:06:53] Speaker 01:
Nothing in the Spectrum Act does.

[01:06:54] Speaker 01:
And so just to point back to a question that Judge Rao asked, you asked, I think very correctly, is there authority under 1422 for FirstNet to use Spectrum pursuant to agreement with license holders?

[01:07:14] Speaker 01:
And I think I could counsel for seriously say yes, that the Spectrum Act allows FirstNet to contract with

[01:07:23] Speaker 01:
state and federal license holders in order to use their spectrum pursuant to 2.103.

[01:07:28] Speaker 05:
With their consent.

[01:07:29] Speaker 01:
With their consent.

[01:07:30] Speaker 01:
But if that's true, if the Spectrum Act does allow FirstNet to use that spectrum, that answers the authority question, doesn't it?

[01:07:38] Speaker 05:
It means it can operate outside the 700 ban.

[01:07:41] Speaker 01:
We would think that that would be a fatal concession by the other side.

[01:07:45] Speaker 07:
So sorry, can you...

[01:07:48] Speaker 07:
Tell me if this is unfair, but can you give me a yes, no answer to this question?

[01:07:54] Speaker 07:
I will try.

[01:07:55] Speaker 07:
Before FirstNet can operate in this new band, will there have to be further government action by NTIA or the president to authorize?

[01:08:15] Speaker 07:
some further action?

[01:08:17] Speaker 01:
I don't know the answer to that question, Your Honor.

[01:08:20] Speaker 01:
And I apologize for not knowing the answer to that question.

[01:08:23] Speaker 01:
Certainly, FirstNet, pursuant to its own internal processes, and as Council FCC pointed out, FirstNet is itself an independent agency within NTIA.

[01:08:31] Speaker 01:
So FirstNet is, in some sense, NTIA itself.

[01:08:35] Speaker 01:
Certainly, FirstNet will have to enter into a legally binding contract with the band manager in order to share the spectrum.

[01:08:42] Speaker 07:
It seems like if you can't answer that question, yes, that takes a lot of the force out of your argument that the FCC is just cleaning things up on its end, but there's a whole different set of regulatory authorizations that have to happen on the first net end.

[01:09:05] Speaker 01:
Well, and what that might point to is a rightness problem, right?

[01:09:10] Speaker 01:
Maybe.

[01:09:11] Speaker 01:
If where we end up is the commission has done all of its work, it's done everything it needs to do, everything within its authority to make this spectrum available, and there's a question now of whether NTIA has the authority that it needs to or has exercised the authority that it needs to exercise in order to make good on that promise, then maybe that's a problem.

[01:09:29] Speaker 01:
That's for down the road.

[01:09:31] Speaker 01:
That's not for today.

[01:09:32] Speaker 01:
Because the commission doesn't have control over that part of the process at all.

[01:09:38] Speaker 01:
And so all the commission can do is say, look, we've heard from FirstNet.

[01:09:42] Speaker 01:
FirstNet came in and filed something in the record saying that we'd love to have this spectrum.

[01:09:45] Speaker 01:
We'd love to make use of it.

[01:09:46] Speaker 01:
We've looked at the FCC, at the authority, we've looked at the Spectrum Act.

[01:09:50] Speaker 01:
We're confident that FirstNet can make use of this spectrum if we make it available to them.

[01:09:54] Speaker 01:
And so it's very reasonable for us to say, we're going to adopt an order that prepares the ground for that kind of sharing agreement.

[01:10:02] Speaker 01:
And ultimately, if it turns out that doesn't work for whatever reason, legally or otherwise, the commission may have to revisit it.

[01:10:10] Speaker 01:
But for today, the question is, was this a reasonable order?

[01:10:13] Speaker 01:
And the answer is certainly yes, because this is exactly the kind of creative problem solving that the commission was designed to address when it was given this sort of plenary authority over allocating the nation's spectrum.

[01:10:29] Speaker 01:
Any other questions?

[01:10:30] Speaker 06:
No, thank you.

[01:10:31] Speaker 06:
All right.

[01:10:31] Speaker 06:
Thank you.

[01:10:32] Speaker 06:
Great.

[01:10:32] Speaker 06:
Thank you.

[01:10:40] Speaker 06:
Ms.

[01:10:41] Speaker 06:
Amundson will give you three minutes for rebuttal.

[01:10:46] Speaker 04:
Thank you, Your Honor.

[01:10:47] Speaker 04:
I'd like to briefly address a couple of questions that Judge Katz has asked counsel and then also address Judge Rao's contract point.

[01:10:56] Speaker 04:
So first, Judge Katz has asked the counsel for the FCC, could FirstNet come to the commission and ask for a license to the 4.9 ban?

[01:11:07] Speaker 04:
In fact,

[01:11:08] Speaker 04:
That is what FirstNet did.

[01:11:09] Speaker 04:
FirstNet did come to the commission and ask for a license to the 4.9 band.

[01:11:13] Speaker 04:
And once Cersei and others pointed out that that would be unlawful, that is when the commission and PSSA pivoted to what became the eventual sort of workaround of the band manager pass-through of Spectrum to FirstNet.

[01:11:29] Speaker 04:
Judge Casas, you also asked what the record showed as to the use of the 700 megahertz spectrum for public safety and first nets need to actually acquire additional spectrum on the 4.9 gigahertz spectrum.

[01:11:45] Speaker 04:
In fact, Circe put in the record below that only a fraction of the 700 megahertz spectrum is currently used for public safety entities.

[01:11:53] Speaker 04:
And it is used primarily for AT&T to serve its commercial subscribers.

[01:11:59] Speaker 04:
AT&T certainly wanted access to an additional 50 megahertz of spectrum in the 4.9 gigahertz band.

[01:12:07] Speaker 04:
And therefore, AT&T and FirstNet

[01:12:11] Speaker 04:
made comments before the commission suggesting the workaround proposal that the commission eventually adopted, such that while this goes to FirstNet, it is really changing the character of the band in that it will be available to AT&T for its commercial subscribers, while AT&T's competitors have to purchase Spectrum at auction to serve public safety entities.

[01:12:34] Speaker 05:
So the work around, I mean, could FCC free up spectrum and just decide that it is for federal use and so therefore could be allocated by NTIA.

[01:12:48] Speaker 04:
It is my understanding that the FCC can make spectrum available for federal use.

[01:12:54] Speaker 05:
They can't license to a federal entity, but they could make it available for a federal entity.

[01:12:59] Speaker 04:
So in the abstract.

[01:13:00] Speaker 04:
But what I think we need to do here is look very specifically at the situation we have here, which is the Spectrum Act, where we have Congress specifically talking about what it wanted FirstNet to do, where it wanted FirstNet to operate, what spectrum it was giving to FirstNet to operate on that spectrum.

[01:13:18] Speaker 04:
to operate its network.

[01:13:21] Speaker 04:
And so, Judge Rao, I just wanted to address directly also your questions about the contracting authority, which as counsel for the commission has conceded and no one raised, so that those were not arguments that the commission raised or that it's supporting interveners or petitioner raised, that in fact it was the contracting authority that provides FirstNet with authority to operate.

[01:13:46] Speaker 05:
When we interpret a statute, we can't

[01:13:48] Speaker 05:
not read provisions of the statute to determine the best meaning of the law.

[01:13:52] Speaker 05:
So I don't think that's fair enough.

[01:13:54] Speaker 05:
I've defended that they've made the argument that it's consistent with the statute.

[01:13:58] Speaker 05:
So we can't not look at provisions of the statute because the commission failed to cite them.

[01:14:03] Speaker 04:
So had they raised that what we would have.

[01:14:05] Speaker 04:
had the opportunity to address in our brief is the fact that that provision falls under 1426B1, which, again, talks about the single public safety wireless license granted under section 1421 of this title.

[01:14:22] Speaker 04:
And then section 1421, in turn, again, specifically refers to the 700 megahertz D-block spectrum.

[01:14:29] Speaker 04:
We would ask the court to grant the petitions of Cersei Bart and the sheriffs.

[01:14:34] Speaker 04:
Thank you.

[01:14:35] Speaker 06:
Thank you.

[01:14:43] Speaker 06:
All right.

[01:14:44] Speaker 06:
You were out of time.

[01:14:45] Speaker 06:
We'll give you one minute.

[01:14:47] Speaker 08:
Thank you, Your Honor.

[01:14:49] Speaker 08:
Just on the need for the SpectrumNet, the order makes clear that the more spectrum, especially of this sort of mid-band spectrum that's particularly good for advanced uses like 5G, the more that's made available to FirstNet, the better.

[01:15:02] Speaker 08:
And the fact that FirstNet can make

[01:15:05] Speaker 08:
make use of that while rigorously prioritizing its public safety traffic as part of what made PSSA think it was such a natural candidate to make productive use of this spectrum.

[01:15:17] Speaker 08:
Council of the FCC noted unused spectrum had just been left in limbo as a result of this order.

[01:15:23] Speaker 08:
We respectfully think that that was unreasonable.

[01:15:27] Speaker 06:
Thank you.

[01:15:29] Speaker 06:
The case is submitted.