Transportation stakeholders, including all 50 state transportation departments (DOTs) told a D.C. federal appeals court Tuesday (January 25) that the FCC erred in the way it opened up 5.9 GHz spectrum, which had been reserved for intelligent transport systems (ITS) to unlicensed wireless. But the action appeared to be an uphill climb given that the U.S. Department of Transportation, which was critical of the decision, now backs the FCC move.

In a victory for cable broadband operators and computer companies, the FCC voted back in 2020 to free up the lower 45 MHz of the 5.9 GHz band for wireless broadband while transitioning the remaining upper 30 MHz to the latest iteration of vehicle-to-vehicle (V2V) communications, and cellular vehicle-to-everything (C-V2X) technology.

Attorney for transportation stakeholders Joshua Turner told the court that the FCC had taken an "extraordinarily broad" view of the public interest, so broad that it apparently did not have to take into account a program meant to reduce the 40,000 or so highway deaths per year, a Congressional priority (in the Transportation Equity Act) the FCC appeared to say was not in the public interest.

Turner also pointed out that DOT was on the record as having said the FCC substituted its judgment for that of transportation safety stakeholders, which was that they needed the full 75 MHz of the 5.9 GHz band for ITS systems that make the road safer.

But the transportation stakeholder side of the argument does not include the federal Department of Transportation because the Biden Administration has come in on the side of the FCC's decision, something one of the judges pointed out to Turner when asking him what he made of the fact that DOT had since changed its position.

Turner said he was not confident DOT no longer had that position because the Administration simply said it had joined the FCC side after considering all the "equities" including the FCC position.

He also said that what matters "is not what DOT thinks about the order now, today, or what the President thinks about the order, now today. What matters is what DOT put into the record," which was a scathing letter to the FCC saying: "you haven't listened to us; you haven't consulted us; you haven't addressed any of our objections."

But Turner was asked why, if the Administration was apparently no longer backing that DOT view, the court should not conclude that the administration was no longer espousing that view, so it no longer seemed relevant.

Turner said the key is that the view was relevant at the time the FCC issued its decision contrary to that view, which was the record before the FCC.

Turner conceded the FCC had consulted with DOT before concluding it could proceed with opening up the band, so one judge asked why that was not enough, particularly given that DOT now thought that consultation was sufficient?

Turner said the Transportation Equity Act did not mean a one-time-shot consultation, as the FCC appeared to treat the statute, but meant a "heavier burden" of consultation than the commission undertook and "real and meaningful consultation" to boot.

One judge asked what "more" consultation would be. Turner said he didn't know what consultation the FCC did do since their explanation of consultation was taking public comment, which included from DOT. But he did say that one way to determine how much consultation there was was by what the FCC decided, which drew a laugh from the bench.

But Turner said that not only DOT but all the state DOTs and others said 30 MHz was insufficient, and who did the FCC listen to: "The cable industry." Turner said it was arbitrary and capricious for the FCC to take the word of the cable industry on transportation safety policy over the word of the transportation safety stakeholders.

In its defense of the decision, the attorney for the FCC said it had made a "reasonable, record-based determination" that it was neither necessary nor in the public interest to use the additional 45 MHz of spectrum for ITS "at the expense of other pressing needs."

He said transportation stakeholders had not demonstrated that they would be doing anything with 75 MHz that they could not do with the 30 MHz the decision reserved for them.

He was asked about the argument that they could not do line-of-site applications or collision avoidance without more spectrum than 30 MHz. He said that the petitioners had not pointed to any claims in the record about those features, but instead about what they might hope to do in the future with that spectrum. He said that "take our word for it" was not good enough.

But Judge Cornelia Pillard suggested that it was kind of a chicken and egg problem in that ITS stakeholders said the technology is coming and that they want to know that sufficient spectrum will be there when they do develop those systems. She asked what would be good enough for the FCC.

The attorney said that the FCC made clear that if the technology is developed and there is a need, the FCC will be ready and able to make other spectrum available for it. He also said that it was not a question on margins about when the technology was coming, but instead a dearth of evidence on when or if it might be developed. Given that dearth, he said, the commissioner reasonably found that it did not justify holding spectrum in reserve.

Pillard said the record did not suggest the FCC did any outreach to DOT other than seeking public comments in its notice of proposed rulemaking, the FCC attorney pointed out that petitioners did not raise that in their opening brief, but that the DOT provided "multiple rounds of feedback," including on an advanced draft of the decision the FCC shared with the DOT and private advance consultations, including in-person meetings with staff (before the pandemic) and other contacts before the order went out, so that there was "ample consultation," and the FCC made some changes based on those consultations. Judge Pillard said that info was "very helpful." ■

Automakers, equipment manufacturers and state Departments of Transportation have asked the FCC for a waiver of its current 5.9 GHz rules so they can start deploying the cellular vehicle-to-everything (C-V2X) technology the FCC anticipated in freeing up other spectrum in the band, which had been reserved for vehicle-to-vehicle communications--for 5G.

The FCC voted unanimously back in 2020 -- under former FCC chairman Ajit Pai -- to free up the lower 45 MHz of the 5.9 GHz band for wireless 5G broadband while retaining the remaining upper 30 MHz for vehicle-to-vehicle (V2V) communications, signaling that rather than the "long-stalled" DSRC V2V technology, it would be the new C-V2X technology.

Also: FCC Defends Freeing up V2V Spectrum for WiFi

In filing the joint request for waiver of the rules, the parties said the FCC was spot on in anticipating C-V2X and that there was a need to "immediately deliver C-V2X safety services to American travelers, especially as deployments accelerate in other regions of the world," services it called "state-of-the-art roadway safety."

They said it makes no sense to apply rules meant for a technology that is being sunset. ■

FCC chairman Ajit Pai has circulated draft rules that would free up the majority of the 5.9 GHz band for wireless broadband while transitioning the remaining 35 MHz to the latest iteration of vehicle-to-vehicle (V2V) communications, and cellular vehicle-to-everything (C-V2X) technology.

Pai plans to vote the item at the FCC's November meeting.

The band has previously been reserved for Dedicated Short-Range Communications (DSRC) V2V communications, and the FCC had contemplated freeing up the lower 45 MHz for WiFi and leaving the upper 30 MHz for either DSRC or C-V2X. Actually, that was after it initially considered allowing V2V and unlicensed to share the same spectrum. 

Auto manufacturers have argued that sharing the band with WiFi could interfere with intelligent transportation systems (ITS)/V2V safety systems, but the FCC said the new rules would improve auto safety by transitioning the upper 30 MHz from the "long-stalled" DSRC, which the FCC said "has done virtually nothing to improve automotive safety."

Others, including computer and cable companies, had argued that the FCC should free up the other 30 MHz for WiFi as well.

Related: Stakeholders Signal Support for FCC's 5.9 GHz Item

The item includes a timeline for transitioning incumbent intelligent transportation system licensees to the upper 30 MHz band, and from DSRC to C-V2X, as well as rules to allow for full-power unlicensed Wi-Fi in the lower 45 MHz band. 

This includes a proposed timeline and technical parameters for transitioning the limited number of incumbent Intelligent Transportation Systems licensees to the upper 30-MHz portion of the band (and then to C-V2X-based technology), as well as adopting technical rules to enable full-power outdoor unlicensed operations in the lower 45-MHz portion of the band.

“[The] 5.9 GHz spectrum has lain fallow for far too long," said Pai in announcing the item's circulation. "For the last two decades, the American people have waited for this prime mid-band spectrum to be put to use, and the time for waiting is over,” said Pai. “We should move on from DSRC and unlock forward-looking automotive safety technology. Under my approach, the FCC would for the first time authorize C-V2X in the 5.9 GHz band. At the same time, we would make available the spectrum needed for a 160 megahertz-wide channel for WiFi, which would enable a new level of gigabit connectivity for schools, hospitals, small businesses, and other consumers."

“At a time when American consumers are relying on WiFi more than ever before, we commend chairman Pai for taking action to enable next-generation WiFi access to the 5.9 GHz band," said Michael Powell, president of NCTA-the Internet & Television Association. "After more than 20 years of spectrum underutilization in 5.9 GHz, and a seven-year Commission proceeding, the Chairman’s compromise proposal is the right way to bring this band online, creating a new wide WiFi channel that will support more data at much faster speeds and that can be activated by early next year, while also reserving sufficient spectrum for future automotive safety innovations. We look forward to working with the chairman and his colleagues on this important item.”

“The Commission’s upcoming action to open 5.9 GHz for unlicensed use represents a critical opportunity for consumers because, with the right rules in place, we will be able to leverage the 5 GHz WiFi ecosystem already in place to deploy use of the new band very quickly,” said Craig Cowden, senior VP of wireless technology for Charter. “It couldn’t have come at a better time for our customers. Throughout the COVID-19 pandemic, WiFi has helped families stay connected and productive as they work, learn, access healthcare, and connect with friends and family from a distance, highlighting the urgent need for robust unlicensed spectrum resources to keep pace with continuously growing demand.”

FCC Chairman Ajit Pai used an announced deployment of Cellular Vehicle to Everything (C-V2X) technology in Northern Virginia to put in a plug for his proposal for opening up a majority of spectrum in the 5.9 GHz band for unlicensed use while reserving most of the rest for C-V2X.

The entire band has been reserved for V2V.

Related: Ford Backs Pai's V2V Compromise

Audi, Qualcomm, and the Virginia Department of Transportation have teamed up to use a special FCC authorization to deploy technology that can alert cars to work zones and allow cars to receive countdowns to stoplight changes (say, an alert that there are five seconds until a light changes from red to green).

Pai has proposed freeing up the lower 45 MHz (of the 70 MHz in the band) exclusively for unlicensed, with the upper 30 MHz continuing to be reserved for V2V communications, including 20 for C-V2X, and possibly the other 10 as well.

Related: FCC Votes to Divide 5.9 GHz to Help Conquer 5G

“Today’s C-V2X deployment announcement was only made possible through an experimental license," Pai said in a statement. "That’s because the current rules governing the 5.9 GHz band lock us into DSRC, a technology authorized by the FCC more than twenty years ago that has never been widely deployed. The FCC recognizes the promise of C-V2X, having voted unanimously in December on a proposal to designate 20 megahertz for its deployment in the 5.9 GHz band. If this proposal is adopted, it would be a significant step forward for automotive safety, since there is currently no spectrum designated for C-V2X. Americans on the move would be the beneficiaries—but only if the FCC takes action and leaves the failed status quo behind.”