Opponents to D.C. Circuit: FCC Plan for More FirstNet Spectrum Unlawful

WASHINGTON, Sept. 17, 2025 – Opponents of the Federal Communications Commission plan to open up more spectrum to FirstNet continued to argue the move would be illegal in Monday briefs to the U.S. Court of Appeals for the D.C. Circuit.

“Congress prescribed a specific operating role for FirstNet and a circumscribed support role for the Commission,” the Coalition for Emergency Response and Critical Infrastructure argued in a reply brief. “The Commission may not override Congress’s statutory scheme with an unprecedented workaround in which the Commission grants an overlay license to a sham Band Manager to pass through spectrum to FirstNet and AT&T.”

AT&T operates FirstNet, a nationwide network for first responders, through a contract with the Commerce Department. CERCI, which represents the other major carriers and other opponents of the FCC plan, has argued that FirstNet can’t operate outside the 700 MegaHertz (MHz) band set aside for it in 2012 and that the FCC can’t assign spectrum to a federal entity.

The group, led by former NYPD Chief Kenneth Corey, is also concerned the move would effectively be a multibillion-dollar windfall to AT&T, which can use excess FirstNet spectrum capacity for its commercial mobile network as part of its contract.

The FCC began the process in October 2024 of allowing FirstNet to use unassigned parts of the 4.9 GHz band, currently set aside for local public safety users, in an effort to increase utilization in the band. The agency would give a band manager, yet to be selected, a nationwide overlay license and allow it to share unassigned airwaves with FirstNet.

CERCI sued to block the move, as did the Public Safety Spectrum Alliance, a pro-FirstNet group that first suggested the idea of opening up 4.9 GHz to the entity. PSSA argued the FCC wasn’t moving quickly enough to get airwaves into FirstNet’s hands. Oral arguments in the consolidated case haven’t been scheduled yet.

The FCC told judges last month that licensees like the future band manager often share spectrum with federal users, and said the National Telecommunications and Information Administration, which manages federal spectrum use, agreed.

FCC Chairman Brendan Carr, a commissioner at the time, supported the move.

CERCI has also taken issue with the agency’s plan to re-categorize current licenses under new service codes designed to trim users’ authorizations to currently used airwaves and geographies. The group, along with some users, has argued the process interrupted buildout plans and reduced their flexibility.

Users had to complete that filing process and submit usage data in June. The FCC has countered that waivers exist if currently unused airwaves are necessary for a local agency’s future planning. 

“A waiver – which, historically, the Commission rarely grants – does not excuse an otherwise unjustified general rule,” CERCI wrote.

PSSA also submitted a filing in which it defended the FCC’s order from CERCI’s claims. PSSA continued, though, to take issue with the agency’s move to defer requiring users to surrender any unused spectrum turned up in their data submissions. That would have the effect of making more airwaves available for FirstNet sooner.

“To be sure, just how much unused spectrum exists will not be finalized until after the data-collection process is completed, but first responders need to know now that unused spectrum will quickly be incorporated into the nationwide public safety broadband network,” the group wrote.

The FCC told judges last month that it needed the usage data to understand how such a move would affect current users, and wanted to avoid undermining their confidence in the band.