`United States Court of Appeals
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`
`
`Argued September 17, 2021
`
`
`Decided December 28, 2021
`
`No. 20-1190
`
`AT&T SERVICES, INC.,
`PETITIONER
`
`v.
`
`FEDERAL COMMUNICATIONS COMMISSION AND UNITED
`STATES OF AMERICA,
`RESPONDENTS
`
`APPLE INC., ET AL.,
`INTERVENORS
`
`
`
`Consolidated with 20-1216, 20-1272, 20-1274, 20-1281,
`20-1284
`
`
`On Petitions for Review of an Order
`of the Federal Communications Commission
`
`
`Jonathan E. Nuechterlein argued the causes for petitioners
`Joint Issues. Mark Reddish argued the causes for petitioner
`APCO. With them on the joint briefs were Jeffrey S. Cohen, C.
`Frederick Beckner III, Rick Kaplan, Jerianne Timmerman,
`Craig A. Gilley, Mitchell Y. Mirviss, Elizabeth C. Rinehart, and
`Russell P. Hanser. Michele Farquhar, Brett Kilbourne, Jay
`
`
`
`
`
`2
`
`Morrison, Brian W. Murray, Delia D. Patterson, Christopher
`T. Shenk, and Ian D. Volner entered appearances.
`
`
`Trey Hanbury and Jessica L. Ellsworth were on the brief
`for amicus curiae Southern Company Services, Inc. in support
`of petitioners.
`
`
`James M. Carr, Counsel, Federal Communications
`Commission, argued the cause for respondents. With him on
`the brief were Daniel E. Haar and Robert J. Wiggers,
`Attorneys, U.S. Department of Justice, Jacob M. Lewis,
`Associate General Counsel, Federal Communications
`Commission, and Thaila K. Sundaresan, Counsel. Richard K.
`Welch, Deputy Associate General Counsel, and Adam Crews,
`Counsel, entered appearances.
`
`Christopher J. Wright argued the cause for intervenors. With
`him on the joint brief were David Paul Murray, Russell H. Fox,
`Robert G. Kidwell, Paul J. Caritj, and Jason Neal in support of
`respondents. Rick C. Chessen and Neal M. Goldberg entered
`appearances.
`
`
`Matthew A. Brill and Matthew T. Murchison were on the
`brief for amicus curiae Cable Television Laboratories, Inc. in
`support of respondents.
`
`
`Andrew Jay Schwartzman and Harold Feld were on the
`brief for amici curiae Public Knowledge, et al. in support of
`respondents.
`
`
`
`
`
`
`
`
`3
`
`Before: TATEL, MILLETT, and WALKER, Circuit Judges.
`
`Opinion for the Court filed by Circuit Judge TATEL.
`
`
`
`TATEL, Circuit Judge: By order dated April 24, 2020, the
`Federal Communications Commission opened the 6 gigahertz
`(GHz) band of radiofrequency spectrum
`to unlicensed
`devices—routers and the devices they connect to, such as
`smartphones, laptops, and tablets. In doing so, the Commission
`required that such unlicensed devices be designed and operated
`to prevent harmful interference with licensees now using the
`6 GHz band, i.e., commercial communications providers,
`electric utilities, public safety services, and network
`broadcasters. Those licensees, emphasizing that existing uses
`of
`the band
`involve vital public safety and critical
`infrastructure, argue
`that harmful
`interference could
`nonetheless occur and that the Order therefore runs afoul of
`both the Communications Act of 1934 and the Administrative
`Procedure Act. But as explained in this opinion, petitioners
`have failed to provide a basis for questioning the Commission’s
`conclusion that the Order will protect against a significant risk
`of harmful interference, just the kind of highly technical
`determination to which we owe considerable deference. We
`therefore deny the petitions for review in all respects save one.
`The exception relates to the petition brought by licensed radio
`and television broadcasters using the 6 GHz band. Because the
`Commission failed adequately to respond to their request that
`it reserve a sliver of that band exclusively for mobile licensees,
`we remand to the Commission for further explanation on that
`point.
`
`
`I.
`
`Many users of the radiofrequency spectrum operate by
`transmitting information through microwaves—short waves of
`890 megahertz (MHz) or higher. See 47 C.F.R. § 101.3
`
`
`
`
`
`4
`
`(defining microwave frequencies). To prevent such users from
`interfering with one another, the Federal Communications
`Commission, pursuant
`to
`its
`authority under
`the
`Communications Act of 1934, 47 U.S.C. § 151 et seq.
`(“Communications Act”), awards licenses to operate in specific
`frequency ranges, or “bands.” See id. §§ 151, 301 (creating the
`Commission to carry out the Act’s provisions and providing for
`licensing).
`
`Historically, the 6 GHz band, comprising frequencies
`between 5.925 and 7.125 GHz, has been reserved for licensed
`users that “support a variety of critical services provided by
`utilities, commercial and private entities, and public safety
`agencies.” Unlicensed Use of the 6 GHz Band; Expanding
`Flexible Use in Mid-Band Spectrum Between 3.7 and 24 GHz,
`35 FCC Rcd. 3852, 3855 ¶ 7 (2020) (“Order”). Some of these
`licensees
`transmit signals
`through a “fixed-microwave
`system,” in which “a transmitter on one tower beams 6 GHz
`signals to a receiver on another tower within its line of sight.”
`Pet’rs’ Br. 3. Fixed microwave systems support “emergency
`911 dispatch and other public safety operations,” id.;
`“commercial wireless providers,” Order ¶ 7; and “links for
`coordination of railroad train movements, control of natural gas
`and oil pipelines, management of electric grids, and long-
`distance telephone service,” id. In addition to fixed microwave
`users, other 6 GHz band licensees operate on a mobile basis.
`They employ transmitters and receivers affixed to portable
`bases, like news vans and broadcasting cameras, and send
`programing from remote locations back to studios. Still others
`employ mobile transmitters to support wireless microphones
`and backstage communications.
`
`Several decades ago, the Commission, charged by
`Congress to “generally encourage the larger and more effective
`use of” the spectrum, 47 U.S.C. § 303(g), opened the 2.4 GHz
`
`
`
`
`
`5
`
`to unlicensed radiofrequency
`and certain other bands
`transmitters. Today, these devices include routers and the
`smartphones, laptops, and tablets they support. Such devices,
`however, must refrain from causing “harmful interference”
`with licensed users. 47 C.F.R. § 15.5(b)–(c); see also
`Additional Spectrum for Unlicensed Devices Below 900 MHz
`and in the 3 GHz Band, No. 02-380, FCC-02-328 ¶¶ 3–4 (Dec.
`11, 2002) (describing the history of unlicensed operation).
`Commission regulations define “harmful interference” as
`interference that “endangers the functioning of a radio
`navigation service or of other safety services or seriously
`degrades,
`obstructs
`or
`repeatedly
`interrupts
`a
`radiocommunications service.” 47 C.F.R. § 15.3(m). If harmful
`interference occurs, the Commission may order the interfering
`user to cease operations. Id. § 15.5(c) (“The operator of a radio
`frequency device shall be required to cease operating the
`device upon notification by a Commission representative that
`the device is causing harmful interference.”); see also id.
`§ 15.15(c) (“[O]perators [of unlicensed devices] are required to
`cease operation should harmful
`interference occur
`to
`authorized users.”).
`
`the radiofrequency
`The Commission’s opening of
`spectrum for unlicensed uses has taken on new import in recent
`years because of a boom in unlicensed devices that use Wi-Fi
`and Bluetooth technology. See Order ¶ 1. Such devices include
`internet “access points” (e.g., routers) and the myriad “client
`devices” that connect to them, like smartphones, tablets, and
`laptops. Id. ¶¶ 3, 12. Because these devices transmit large
`amounts of data, they require access to wide bands of the
`spectrum. “The demand for wireless broadband,” according to
`the Commission, “continues to grow at a phenomenal pace;”
`by 2024, a smartphone’s average data use is projected to grow
`almost sixfold relative to 2018 data levels. Id. ¶ 2.
`
`
`
`
`
`6
`
`In 2017, responding to this growing demand, the
`Commission announced that it was considering opening a
`portion of spectrum between 3.7 and 24 GHz to unlicensed use
`and sought public comment. Expanding Flexible Use in Mid-
`Band Spectrum Between 3.7 and 24 GHz, 32 FCC Rcd. 6373
`(2017). The following year, the Commission proposed a rule
`that would open the 6 GHz band to unlicensed devices, again
`seeking public comment. Unlicensed Use of the 6 GHz Band;
`Expanding Flexible Use in Mid-Band Spectrum Between 3.7
`and 24 GHz, 33 FCC Rcd. 10496 (2018). The Commission
`chose the 6 GHz band in part because of its proximity and
`similarity to the 5 GHz band, portions of which already allowed
`unlicensed use. Opening the adjacent 6 GHz band would allow
`unlicensed devices to “operate with wider channel bandwidths
`and higher data rates with increased flexibility.” Id. ¶ 14; see
`also id. ¶ 19. After considering comments, the Commission, at
`an open meeting on April 23, 2020, adopted the Order now
`before us. See generally Order, 35 FCC Rcd. 3852.
`
`The Order allows unlicensed devices to operate in the
`6 GHz band. Because the extent to which a signal may cause
`interference depends in part on the signal’s power, the Order
`distinguishes between internet access points that use standard
`power (like the devices that provide internet to stadiums,
`concert halls, and other large areas) and access points that use
`low power (like typical residential or office routers).
`
`The Order requires all standard-power access points to use
`an automated frequency coordination (AFC) system, a
`technology designed to ensure that unlicensed devices do not
`cause harmful interference with licensed devices. Id. ¶ 17. But
`because the AFC system requires knowing the “exact operating
`locations and times” of licensed uses, it offers little protection
`to licensed mobile operators, whose location “can change
`frequently.” Id. ¶ 93. For that reason, the Order prohibits
`
`
`
`
`
`7
`
`unlicensed standard-power access points from using those
`6 GHz sub-bands in which mobile licensees operate.
`
`By contrast, the Order allows unlicensed low-power
`access points to operate across the 6 GHz band. But to protect
`licensed users from harmful interference, the Order requires
`that routers (1) operate below specified maximum power
`levels—as relevant here, 5 decibel milliwatts per megahertz (5
`dBm/MHz); (2) use a “contention-based protocol,” through
`which a device “listens” to a channel to ensure it is free before
`transmitting a signal over it; and (3) remain indoors, thus
`decreasing the likelihood of interference with licensed outdoor
`users. Smartphones, laptops, and other client devices using
`these low-power access points must observe an even lower
`maximum power limit and employ contention-based protocol
`technology. To discourage the outdoor use of low-power
`routers, the Order (1) prohibits making them weather-resistant,
`(2) requires that they have integrated antennas, and (3) forbids
`equipping them with batteries. These multifaceted protections,
`the Commission concluded, “eliminate[] any significant risk of
`causing harmful interference” with licensed users. Id. ¶ 146.
`
`Petitioners either hold licenses to operate in the 6 GHz
`band or represent entities that do. Specifically, petitioners are
`commercial communications providers AT&T Services and
`Lumen Technologies, electric utilities, the Association of
`Public-Safety Communications Officials
`International
`(APCO), and the National Association of Broadcasters.
`Petitioners contend that the Order fails to protect licensees
`from harmful interference and therefore runs afoul of both the
`Communications Act and the Administrative Procedure Act
`(APA), 5 U.S.C. § 706(2)(A). They urge us to vacate the Order
`and remand
`to
`the Commission
`to
`implement further
`safeguards. Several industry groups and companies, including
`Apple, Broadcom, and Cisco Systems, which manufacture
`
`
`
`
`
`8
`
`devices or provide services that rely on unlicensed spectrum,
`have intervened to defend the Order.
`
`II.
`
`of
`principles
`longstanding
`and
`Fundamental
`administrative law guide our review of petitioners’ challenges
`to the Commission’s order. To demonstrate that a regulation is
`arbitrary and capricious, a challenger must show that the
`agency “relied on factors which Congress has not intended it to
`consider, entirely failed to consider an important aspect of the
`problem, offered an explanation for its decision that runs
`counter to the evidence before the agency, or is so implausible
`that it could not be ascribed to a difference in view or the
`product of agency expertise.” Motor Vehicle Manufacturers
`Ass’n v. State Farm Mutual Automobile Insurance Co., 463
`U.S. 29, 43 (1983). Where, as here, the Commission “‘foster[s]
`innovative methods of exploiting the spectrum,’ it ‘functions
`as a policymaker’ and is ‘accorded the greatest deference by a
`reviewing court.’” Mobile Relay Associates v. FCC, 457 F.3d
`1, 8 (D.C. Cir. 2006) (quoting Teledesic LLC v FCC, 275 F.3d
`75, 84 (D.C. Cir. 2001)). Of course, “we do not hear cases
`merely to rubber stamp agency actions.” Natural Resources
`Defense Council, Inc. v. Daley, 209 F.3d 747, 755 (D.C. Cir.
`2000). But to survive judicial review, the Commission’s
`technical judgments need rest upon only “‘a modicum of
`reasoned analysis,’ ‘absent highly persuasive evidence to the
`contrary.’” Mobile Relay Associates, 457 F.3d at 8 (quoting
`Hispanic Information & Telecommunications Network, Inc. v.
`FCC, 865 F.2d 1289, 1297–98 (D.C. Cir. 1989)). Moreover,
`the Commission’s “‘predictive judgments about areas’” within
`its “‘discretion and expertise are entitled to particularly
`deferential review, as long as they are reasonable.’” EarthLink,
`Inc. v. FCC, 462 F.3d 1, 12 (D.C. Cir. 2006) (emphasis
`omitted) (quoting In re Core Communications, Inc., 455 F.3d
`267, 282 (D.C. Cir. 2006)).
`
`
`
`
`
`9
`
`A.
`
`All petitioners argue that the Commission has understated
`the risk of harmful interference. Central to this argument,
`petitioners claim that the Commission intended the Order to
`eliminate all
`risk of harmful
`interference. “[I]n
`the
`[Commission’s] view,” petitioners assert,
`the Order
`“eliminate[s] any ‘significant risk’ that any of the hundreds of
`millions of unlicensed 6 GHz devices will cause harmful
`interference to any of the nation’s nearly 100,000 licensed
`microwave links, at any point in the foreseeable future.” Pet’rs’
`Br. 21. Dissecting the studies upon which the Commission
`relied and critiquing the Order’s safeguards for licensed users,
`petitioners argue that some harmful interference will occur at
`some point, thus rendering the Order arbitrary and capricious.
`
`Petitioners mischaracterize the Commission’s goal. It
`never claimed that the Order would reduce the risk of harmful
`interference to zero. To the contrary, the Commission
`repeatedly explained that the Order makes the “potential for
`harmful interference to incumbent services operating in the
`6 GHz band . . . insignificant.” Order ¶ 104 (emphasis added);
`see also id. ¶¶ 110, 122 n.317, 145–46, 245 (repeatedly
`characterizing such risk as low or insignificant, not zero). The
`Commission acknowledged that it had to “balance unlicensed
`device access and incumbent protection,” id. ¶ 63, and
`explained that “in the unlikely event that harmful interference
`does occur,” “the Commission’s Enforcement Bureau has the
`ability to investigate reports of such interference and take
`appropriate enforcement action as necessary,” id. ¶ 149. This
`aligns perfectly with existing Commission regulations, which
`(1) acknowledge that full compliance “will not prevent harmful
`interference under all circumstances” and (2) authorize the
`Commission to order interfering users to cease operations. 47
`C.F.R. § 15.15(c); see also supra at 5.
`
`
`
`
`
`10
`
`B.
`
`Petitioners argue that the Order falls short in other ways.
`
`We start with petitioners’ contention that the Commission
`should have estimated the frequency and cost of harmful
`interference. In support, they cite Competitive Enterprise
`Institute v. National Highway Traffic Safety Administration, in
`which our court remanded a fuel efficiency rule to the agency
`for failing to consider the standard’s impact upon car size and
`safety. 956 F.2d 321 (D.C. Cir. 1992). But unlike the agency in
`Competitive Enterprise, the Commission “conduct[ed] a
`serious analysis of the data,” revealing the likelihood of harm
`to be vanishingly low. Id. at 327. Moreover, even if harmful
`interference does occur,
`its victims may petition
`the
`Commission for relief. See Order ¶ 149 & n.397 (discussing
`the Commission’s ability to respond to complaints); see also
`supra at 5.
`
`Accusing the Commission of a “textbook APA violation,”
`petitioners argue that the agency failed to explain why it did
`not require low-power devices to use an AFC system, as must
`standard-power devices. Pet’rs’ Reply Br. 6–7. Oral Arg. Tr.
`4–5. We disagree. In the Order, the Commission explained that
`the requirements for low-power devices (power limits,
`contention-based protocol, and indoor operation), together
`with Commission enforcement authority, “reduce[]
`the
`possibility of harmful interference to the minimum that the
`public interest requires.” Order ¶ 146; see also id. ¶¶ 147–50
`(acknowledging comments seeking an AFC system and
`explaining why the Order’s other requirements reduce the risk
`of harmful interference to an acceptably low level). Put
`differently, the Commission concluded that even without an
`AFC system, “the restrictions and requirements
`.
`.
`.
`establish[ed] for indoor use of low-power access points
`
`
`
`
`
`11
`
`eliminates any significant risk of harmful interference.” Id.
`¶ 146; see also id. ¶¶ 147–50.
`
`Petitioners also raise several technical objections to the
`principal study on which the Commission relied. A simulation
`submitted by Cable Television Laboratories (“CableLabs”), a
`nonprofit supporting broadband providers, the study models
`the likelihood that hypothetical unlicensed 6 GHz devices
`scattered across New York City will interfere with transmission
`from a local microwave tower. To simulate a city filled with
`unlicensed routers, the study uses what is known as Monte
`Carlo analysis. Id. ¶ 117. Developed by scientists working on
`the Manhattan Project, Monte Carlo analysis differs from more
`traditional mathematical models in how it accounts for
`variables. Nick T. Thomopoulos, Essentials of Monte Carlo
`Simulation: Statistical Methods for Building Simulation
`Models 1 (2013). Here the variables are those factors that affect
`a router’s transmission, such as its power, location, and
`frequency range. While traditional models select a single value
`(e.g., an average) for each variable, Monte Carlo analysis uses
`a range of possible values for each variable, runs hundreds of
`simulations, and produces a range of possible outcomes. In
`situations where “interactions between the possible outcomes
`become [exceptionally] complex,” Monte Carlo analysis can
`provide a “more complete view of potential outcomes and their
`associated likelihoods.” Federal Judicial Center & National
`Research Council, Reference Manual on Scientific Evidence
`469 (3d ed. 2011) (first quote); CableLabs Amicus Br. 7–8
`(second quote).
`
`The CableLabs study uses sales projections and statistical
`distributions drawn from real-world data and
`industry
`standards to analyze the effect of approximately 800,000
`hypothetical routers on a microwave tower in New York City.
`CableLabs ran 1,500 simulations, generating data on more than
`
`
`
`
`
`12
`
`1.2 billion hypothetical routers. Not one of the hypothetical
`routers caused harmful interference.
`
`Calling the study a “black box,” petitioners argue that the
`Commission should have made available “spreadsheets,
`formulas, detailed datasets, and transparent explanations of
`how those datasets were obtained.” Pet’rs’ Br. 14. In support,
`they cite American Radio Relay League, Inc. v. FCC, in which
`we faulted the Commission for cherry-picking the data it
`disclosed. 524 F.3d 227, 237 (D.C. Cir. 2008). Here, by
`contrast, the Commission disclosed all data in its possession.
`The Commission, moreover, emphasizes that CableLabs’s
`submission was “typical [of] FCC proceedings”—that is, it
`“presented the results of its study by describing the sample size,
`simulation
`parameters, methodology,
`and
`results.”
`Commission Br. 46. According to the Commission, such
`information, not raw data, “allows parties to meaningfully
`comment.” Id. at 46–47. Indeed, our court has explained that
`“requiring agencies to obtain and publicize the data underlying
`all studies on which they rely would be impractical and
`unnecessary.” American Trucking Ass’ns, Inc. v. EPA, 283
`F.3d 355, 372 (D.C. Cir. 2002) (internal quotation marks
`omitted).
`
`Petitioners also criticize the CableLabs study for ignoring
`those rare cases when a router’s signal might experience zero
`“building loss,” a variable that measures the extent to which a
`building’s characteristics, such as
`insulation and wall
`thickness, weaken router signals. Pet’rs’ Br. 45–48. Although
`the Commission acknowledged that “it would be more
`appropriate for CableLabs to have used the full statistical
`distribution” of building loss values, it nonetheless concluded
`that the range used in the CableLabs study was “not different
`enough from the [full] statistical distribution to materially alter
`the likelihood of harmful interference occurring.” Order ¶ 122.
`
`
`
`
`
`13
`
`Petitioners have offered no reason for us to depart from our
`court’s longstanding practice of according “considerable
`deference” to the Commission’s expertise on such a “highly
`technical question.” American Radio Relay, 524 F.3d at 233
`(internal quotation marks omitted).
`
`Petitioners next criticize the CableLabs study for assuming
`an “average activity factor of 0.4%,” meaning that routers
`“transmit only one minute out of every 250.” Pet’rs’ Br. 43
`(internal quotation marks omitted). “Where,” they ask, “does
`that strikingly low figure come from?” Id. Answering that
`question in the Order, the Commission explained that the
`CableLabs study uses “a distribution of airtime utilization
`based on data taken from 500,000 Wi-Fi access points to model
`how often each access point in the simulation transmits”—the
`average activity factor was 0.4%. Order ¶ 117; see also
`CableLabs Ex Parte Letter on AT&T’s Comment Letter (Feb.
`14, 2020), at 1–2 (explaining the source of this figure). True,
`this does seem low, but as intervenors explained at oral
`argument, routers, especially those operating in the 6 GHz
`band, transmit huge amounts of data in “really tiny burst[s].”
`Oral Arg Tr. 52. For example, counsel explained, in “a matter
`of seconds or less,” a router can receive the data necessary to
`enable “watching [a video] for two hours.” Id. Determining a
`router’s activity factor “is precisely the type of technical issue
`on which we defer to the Commission’s expertise,” Keller
`Communications, Inc. v. FCC, 130 F.3d 1073, 1077 (D.C. Cir.
`1997), especially “absent highly persuasive evidence” from
`petitioners that routers have a higher activity factor than the one
`used by CableLabs, Mobile Relay Associates, 457 F.3d at 8
`(internal quotation marks omitted).
`
`Last, petitioners fault the CableLabs study for assuming
`that “1500 snapshots in time provide[] a sample sufficient for
`drawing a statistically sound conclusion
`that harmful
`
`
`
`
`
`14
`
`interference will never occur.” Pet’rs’ Br. 48. But as explained
`above, the Commission never said that no harmful interference
`would occur; it concluded only that, given the Order’s
`safeguards, “the potential for harmful
`interference
`to
`incumbent services operating
`in
`the 6 GHz band
`is
`insignificant.” Order ¶ 104 (emphasis added).
`
`the
`Petitioners’ next set of challenges centers on
`Commission’s rerun of a study prepared and submitted by
`petitioner AT&T. That study identifies several buildings with
`direct lines of sight to various microwave towers and assumes
`that the buildings contain 6 GHz routers that might interfere
`with the towers’ signals. Unlike the Monte Carlo analysis used
`in the CableLabs study, the AT&T study, as originally
`designed and submitted to the Commission, selects single,
`worst-case values for all but one variable—that is, values likely
`to cause harmful interference. The AT&T study concludes that
`hypothetical routers could interfere with a microwave tower in
`every case.
`
`The Commission discounted that conclusion because the
`AT&T study uses worst-case scenarios and so does not “rebut
`the persuasive showing by CableLabs based on a reliable
`probabilistic
`assessment derived
`from measurements
`associated with hundreds of thousands of actual Wi-Fi [access
`points].” Id. ¶ 130. Notwithstanding
`the Commission’s
`preference for Monte Carlo analyses, it reran the AT&T study
`“to show that even under AT&T’s preferred mode of analysis
`. . . the likelihood of harmful interference [is] insignificant.”
`Id. ¶ 127 n.331. To accomplish this, the Commission revised
`the AT&T study in several respects, two of which are relevant
`here. First, it modified how the AT&T study deals with
`building loss, the one variable for which that study uses a range
`of values. Because the Commission believed that treating
`building loss differently from all other variables undermined
`
`
`
`
`
`15
`
`the study’s accuracy, it replaced the range with a single,
`average value. Second, for two of the six scenarios, the
`Commission substituted what it believed to be more reasonable
`values for “clutter loss,” signal attenuation caused by terrain,
`trees, and other structures. Id. ¶ 124. Thus modified, the AT&T
`study demonstrates that only one of the six scenarios could
`result in “a nontrivial possibility of harmful interference,” and
`the Commission discounted even that because it did “not
`believe this one case poses a significant potential for actual
`harmful interference.” Id. ¶ 131.
`
`Petitioners criticize the Commission for using an average
`value instead of a statistical distribution for building loss and
`for failing to respond to comments on this subject. But the
`Commission did respond, explaining that treating only building
`loss “as a probabilistic quantity while not considering all the
`other
`[relevant] statistical quantities” exaggerated
`the
`likelihood of interference. Order ¶ 127. Petitioners quibble
`with this conclusion, but they have given us no real basis for
`second-guessing the Commission’s analysis, which, as in much
`of this case, “requires a high level of technical expertise”
`meriting deference to the Commission’s “informed discretion.”
`Marsh v. Oregon Natural Resources Council, 490 U.S. 360,
`377 (1989) (internal quotation marks omitted).
`
`Next, petitioners fault the adjustments the Commission
`made for clutter loss. According to AT&T, it selected the six
`case studies precisely because the towers all had a direct line
`of sight to at least one building assumed to have one or more
`routers, which meant that “clutter loss approached zero.”
`Pet’rs’ Br. 34. The Commission, however, explained that it
`found the assumption of zero clutter loss unrealistic for the two
`scenarios in which the tower and the router were more than one
`kilometer apart. “Based on [its] experience,” the Commission
`explained, AT&T’s model “drastically underpredicts [clutter]
`
`
`
`
`
`16
`
`loss for longer distances because, as a practical matter, there is
`almost always interaction with the environment that reduces
`the signal level.” Order ¶ 67. Besides, as noted above, the
`Commission explained that because the AT&T study uses
`worst-case scenarios, it does not “rebut the persuasive showing
`by CableLabs” that the likelihood of harmful interference is
`insignificant. Id. ¶ 130.
`
`C.
`
`In addition to challenging the CableLabs study and the
`Commission’s rerun of the AT&T study, petitioners challenge
`the Order’s requirements for low-power access points—that
`they not exceed a power limit of 5 dBm/MHz, that they be
`equipped with contention-based protocol technology, and that
`they operate only indoors.
`
`We begin with power limits, which the Order sets at
`5 dBm/MHz. According to petitioners, the Commission
`“plucked [that figure] out of thin air” and failed to “cite
`evidence . . . [for] pegging the power level to 5, rather than
`(say) 3 or 1.” Pet’rs’ Br. 51. Quite to the contrary, the
`Commission chose 5 dBm/MHz “[b]ased on [its] experience
`with unlicensed operations and
`interference analyses,”
`including using that precise power limit when it reran the
`AT&T study and found an insignificant risk of harmful
`interference. Order ¶ 110. Relying on
`its “engineering
`judgment,” the Commission concluded that 5 dBm/MHz “will
`both adequately protect all incumbents in the band from
`harmful interference as well as offer enough power to
`unlicensed devices, commensurate with the levels in . . . other
`. . . bands.” Id.
`
`protocol
`contention-based
`that
`claim
`Petitioners
`technology allows low-power devices to detect only devices
`like themselves that “transmit in all directions at once” and thus
`
`
`
`
`
`17
`
`offers no protection to licensed fixed microwave users that
`send “focused point-to-point beam[s].” Pet’rs’ Reply Br. 27.
`But the Commission never claimed that contention-based
`protocol would directly protect microwave towers from
`interference. Instead, it explained, “our rule requiring that low-
`power indoor access points employ a contention-based
`protocol ensures that none of these unlicensed devices will
`employ continuous transmissions,” thus making the occurrence
`of harmful interference “even less likely.” Order ¶ 141; see
`also id. n.374.
`
`Petitioners contend that even if power limits and
`contention-based protocol technology could protect licensees
`from indoor low-power devices, these precautions will fall
`short when such devices inevitably operate outdoors—for
`example, when people take their routers outside to conduct
`Zoom calls on their balconies. Fully aware of that risk, the
`Commission imposed several requirements to make outdoor
`use “impractical and unsuitable.” Id. ¶ 108. Specifically, it
`required that routers have incorporated antennas, no batteries,
`and no weather-resistant capability. Petitioners insist that
`“[a]lthough these measures might help discourage outdoor use
`. . . they cannot possibly prevent it.” Pet’rs’ Br. 53. But again,
`petitioners are measuring the Order against a standard the
`Commission never embraced; as explained above, the Order
`does not seek to reduce the risk of harmful interference to zero.
`Rendering outdoor router use impractical, as petitioners
`concede the Order does, rather than impossible, promotes the
`Commission’s goal of making the risk of harmful interference
`“insignificant.” Order ¶ 104.
`
`Petitioners argue that client devices, like smartphones and
`laptops, will interfere with licensed users when operating
`outdoors. Equally aware of this risk, the Commission imposed
`power limits on client devices to “ensure that [they] remain in
`
`
`
`
`
`18
`
`close proximity to the indoor access points.” Id. ¶ 103. By
`doing so, the Commission “authorize[d] indoor unlicensed
`devices with adequate power to be useful to the public while
`also protecting the licensed services in the 6 GHz band from
`harmful interference.” Id.
`
`D.
`
`Petitioners’ remaining arguments are equally without
`merit. They contend that the Commission arbitrarily rejected
`two studies that analyze situations with low clutter loss. The
`Commission,
`however,
`offered
`perfectly
`reasonable
`explanations for rejecting each. See id. ¶ 133 (“We have
`conducted
`a
`similar
`analysis
`of
`the
`[Cellular
`Telecommunications Industry Association] study as we did
`with AT&T’s study and arrived at similar results.”); id. ¶ 154
`(disagreeing with assumptions in the National Association of
`Broadcasters’ study, including that devices will have direct
`lines of sight to news gathering receivers and that the threshold
`for harmful interference is -10 dB). Petitioners disagree with
`the Commission’s view of worst-case assumptions in these and
`other studies, but disagreement by itself is insufficient to
`demonstrate that the Commission failed to “examine the
`relevant data and articulate a satisfactory explanation for its
`action including a ‘rational connection between the facts found
`and the choice made.’” State Farm, 463 U.S. at 43 (quoting
`Burlington Truck Lines v. United States, 371 U.S. 156, 168
`(1962)).
`
`Petitioners criticize the Commission for declining to
`impose a mandatory maximum activity factor for unlicensed
`devices. As indicated above, however, the Commission
`explained that “requiring [such] devices to use a contention-
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