A comprehensive legal analysis submitted to the Federal Communications Commission (FCC) this week by the Coalition for Emergency Response and Critical Infrastructure (CERCI) argues against the proposal to grant the FirstNet Authority a nationwide license to the 4.9 GHz spectrum currently designated for public-safety use. Prepared by the esteemed law firm of Jenner & Block, the analysis asserts that such an action would be "unlawful" on multiple grounds.

Commissioned by CERCI, the legal analysis underscores three key reasons why granting the FirstNet Authority control of the 50 MHz of 4.9 GHz spectrum would contravene existing statutes and regulatory principles. Firstly, it contends that the FCC lacks the statutory authority to extend licenses beyond the 700 MHz band specified in the Middle Class Tax Relief and Job Creation Act of 2012. Secondly, even if such authority existed, the analysis argues that the FirstNet Authority is not empowered by law to receive such a license. Thirdly, it raises concerns about the legality and delegation of authority regarding such a significant decision.

The analysis highlights the specific language of the 2012 statute, which established the FirstNet Authority, pointing out that it only permits the Authority to hold a license to the 700 MHz Band 14 spectrum. Furthermore, it emphasizes that the 4.9 GHz spectrum is explicitly reserved for state or local government entities and non-governmental organizations, making the FirstNet Authority ineligible to receive such a license under current regulations.

Moreover, the legal analysis warns against the FCC's potential violation of the major questions doctrine and the nondelegation doctrine, citing the immense economic and political implications of such a decision. It stresses that any allocation of the 4.9 GHz spectrum to the FirstNet Authority would require clear congressional authorization, which is absent in this case.

The FCC initiated the latest 4.9 GHz proceeding amid assertions that the spectrum dedicated to public safety has been underutilized. While proponents of the proposal argue for the efficiency of the FirstNet priority-and-preemption model, opponents like CERCI maintain that local control of the spectrum should be preserved.

The FCC's recent rules for the 4.9 GHz spectrum, approved by commissioners in January 2023, mark the agency's first action on the matter since the transition between presidential administrations. The rules propose a framework for a single nationwide band manager to coordinate spectrum usage and advocate for expanded utilization of the spectrum beyond public safety.

Though the Public Safety Spectrum Alliance (PSSA) has advocated for granting a nationwide license to the 4.9 GHz spectrum, it has clarified that a different entity, not the FirstNet Authority, would serve as the band manager under its plan.