FCC does have expertise to detect security risk, says US Court, upholding Huawei ban

By Elles Houweling

The US Court of Appeals has refused to hear Huawei’s plea to override the Federal Communications Commission’s (FCC) ruling classifying the Chinese tech giant as a national security risk. Following the court’s decision, Huawei remains banned from selling its 5G telecom technology with federal funds designated for US broadband development.

Huawei argued that the FCC lacked the expertise to determine whether its equipment posed a security threat, which the court did not accept. On Friday, the 5th Circuit court of Appeals ruled that the FFC was fully within its power and competence to issue the rule barring “Universal Service Fund” subsidies recipients from buying equipment or services from companies deemed national security risks, the Associated Press reports.

“Assessing security risks to telecoms networks falls in the FCC’s wheelhouse,” the judges wrote in a 60-page opinion, rejecting any suggestion it was some sort of “junior-varsity” agency on national security matters.

The fight between Washington and Huawei has been going on for a while. In 2019, the FCC designated the telecom equipment provider as a security risk, citing ties to the Chinese government. The FCC also sanctioned Chinese rival ZTE on similar grounds.

Subsequently, Huawei sued the FCC after the agency voted to bar rural carriers from using government subsidies to buy equipment from Huawei. At the time, the company said the decision was “based on politics, not security.” It claimed the FCC was exceeding its authority by making national security judgments.

Last week, the FCC doubled down on its 2019 decision, voting unanimously to advance the ban on companies deemed a threat to US national security, including Huawei. Under the new proposal, equipment that had previously been authorised could be revoked.

Friday’s decision was in line with a long-standing tradition of US courts not to second-guess government judgments about national security.