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." ■

 Streaming service ALLBLK will produce a new family drama series from actor/producer Colman Domingo.

The series West Philly, Baby follows the journey of a Philadelphia family forced to grapple with their matriarch’s declining memory amidst uncovering long held family secrets that shake the foundation of their home. The series is based on the 2019 stage play Dot, produced by Domingo, who has starred in Ma Rainey's Black Bottom, Euphoria and Fear the Walking Dead.

West Philly, Baby, part of Domingo’s first-look deal with AMC Studios under his Edith Productions banner, will be executive produced by Domingo and Alisa Tager, according to ALLBLK.

“We've had a long and very distinctive and successful partnership with Colman, going all the way back to Victor Strand and the first season of Fear the Walking Dead,” said Dan McDermott, president of original programming for AMC Networks and AMC Studios, in a statement. “West Philly, Baby is a project that is very personal to Colman, based on his award-winning play, and we are thrilled to bring it to the screen, initially on our ALLBLK streaming service, through his overall deal with AMC Studios.”

ALLBLK & WE tv general manager Brett Dismuke added: “As a fan of Colman’s dating back to his early work with Spike Lee, the dynamic he has brought to so many impactful pieces over the years has been a true pleasure to watch. The opportunity to marry ALLBLK with AMC and Colman’s in-house relationship for this first-ever co-production between our two brands feels truly serendipitous. Audiences will be in for a real treat with West Philly, Baby.”

ISPs may not want broadband access to be treated as a utility, but the Department of Transportation is recommending that approach to states when it comes to using highway rights of way (ROW) to boost broadband deployment.

That came in a memo from the Department of Transportation to state DOTs. Transportation Secretary Pete Buttigieg committed his department to work with states to "host transmission lines, build renewable energy projects, deploy broadband, and support electric vehicle charging along highway rights-of-way," all part of President Joe Biden's modernization of the power grid.

Buttigieg encouraged Federal Highway Administration division offices to encourage state DOTs to think about practices to further broadband deployment, including "minimizing repeated excavation of the roadway" [more popularly known as "dig once"], coordinating with broadband utilities [note the use of the term "utility"] during highway construction, and integrating trenchless technologies into construction practices, as appropriate."

Also Read: Broadband Infusion in Biden Plan Faces Challenges

DOT also encouraged the states to treat broadband as a utility--in terms of accommodating them in rights of way (ROW) "to the extent practicable and consistent with State law." It said that for broadband projects, updating a state's utility accommodation policy could help. It added that states where laws allow for broadband to be considered a "utility facility," can proceed with the permitting process under applicable terms and conditions.

DOT provides for an alternative to the utility designation for broadband. "As a separate path from accommodation as "utilities," the FHWA may approve alternative uses of the highway ROW if it is determined that such occupancy, use, or reservation is in the public interest and will not impair the highway or interfere with the free and safe flow of traffic thereon," DOT said.

ISPs are all for digging once and otherwise speeding broadband deployment, but would probably prefer that their definition as utilities not gain traction if it also suggests they should be reclassified as Title II telecom services subject to mandatory access and rate regs as Democrats have been pushing for.

Senate Communications Subcommittee Chairman John Thune (R-S.D.) and Sen. Ed Markey (D-Mass.) say that recent drone sightings in "safety-sensitive" areas--like the Boston Red Sox' Fenway Park, says Markey--have put an exclamation point on their call for FAA to publish a proposed rule to let the public know who is flying where.

Drones are used for, among many other things, TV and movie production, as well as live sports and news.

In a letter to Department of Transportation Secretary Elaine Chao, the senators cite various sightings, including during the baseball game and one at Newark Liberty Airport that led to flights being halted.

They point out that Congress directed the FAA to come up with drone-identification standards in 2016, with a two-year deadline that passed nearly a year ago, and that the legislation is key to insuring privacy as well as safety.

The senators say the rules would allow the public, the FAA, law enforcement, and others to track drones and identify their operators.

Related: Sen, Markey Says Privacy Regs Should Precede Drone Rules

The FCC proposed to loosen its commercial drone rules to allow commercial drones to be flown over people and at night "under certain conditions." Markey said identification rules should be a linchpin of any rule allowing drone flights over people.

A number of TV and movie producers have been granted waivers of general drone flight rules.

The National Cable & Telecommunications Association is pushing the President to make opening up the 5.9 GHz band for more Wi-Fi a priority in his remaining days in office, saying the need is urgent and the spectrum deficit dangerous.

It signed on to a joint letter to the White House from a group of tech and Internet companies, schools and libraries.

While NCTA is sparring with Google in the set-top sphere, and has butted heads with Free Press over consolidation, they are all together in their support of opening up the band.

Cable operators have been pushing for more 5 GHz spectrum to fuel their Wi-Fi hotspots, the industry's primary mobile broadband play.

"While Americans’ dependence on unlicensed technologies for Internet access continues to skyrocket," they told the President, "the spectrum resources that power our devices are perilously insufficient. As a result, our Wi-Fi bands are becoming dangerously congested. The problem has become so severe that Cisco and Apple have recently warned customers that the core 2.4 GHz unlicensed band has become so overtaxed that it “is not considered suitable for use for any business and/or mission critical enterprise applications.” We must act now to find more unlicensed spectrum."

The President has not been shy about wanting to free up more spectrum for broadband--it has been a tech centerpiece of his Administration--and The FCC has been looking to do so in the 5.9 GHZ band, but there remain issues of possible interference with connected car technology that it is still working through.

The FCC has an open inquiry into using the band for unlicensed, and Department of Transportation have agreed on testing the co-existence of vehicle-to-vehicle communications (intelligent transportation system [ITS] devices) and Wi-Fi, but the groups say the President needs to prioritize finding a solution, which it suggests is out there.

They say the President needs to implement "one of the promising coexistence options that would reconfigure the band to permit Wi-Fi to share the band safely with . . . crash-avoidance applications.”

They also take aim at ITS, saying it has yet to make meaningful use of that band and that other technologies are overtaking it. "Fortunately, there is still time for both Wi-Fi and ITS to design their wireless operations with sharing built in so the band can enable ITS and benefit Wi-Fi consumers. Thus, the ideal moment to put sharing criteria in place for the 5.9 GHz band is now."

They say the 5.9 GHz band is 1) "uniquely large enough to support wireless innovation and investment, and occupies a low enough frequency range to support widespread consumer operations; 2) "is immediately adjacent to the existing 5.8 GHz unlicensed band, which already uses Wi-Fi to support millions of consumer devices and automotive functions for drivers today," 3) and will "allow the United States to deploy next-generation 160-MHz-wide gigabit Wi-Fi technologies, greatly increasing throughput and performance.

Finally, they say the band is unutilized in the vast majority of the country, with far fewer government operations than other potential Wi-Fi bands and widespread use of ITS systems still 15-20 years away.

Other strange-bedfellow groups NCTA is in league with on the issue include the American Library Association, Consumer Federation of America and Next Century Cities.