The FCC, backed by the Biden Justice Department, is telling a federal appeals court that it was reasonable for the commission to reclaim a swath of 5.9 GHz licensed vehicular communications spectrum for unlicensed WiFi, and it had the authority to do it.

That came in a brief filed with the U.S. Court of Appeals for the D.C. Circuit.

The Intelligent Transportation Society of America and the American Association of State Highway and Transportation Officials sued the FCC over its unanimous decision and had sought an emergency stay from the court, which denied that request in August, meaning the underlying case proceeded.

Also Read: NCTA Tells FCC To Stay on Road to WiFi 5.9 GHz Sharing

The FCC voted unanimously under former FCC Chairman Ajit Pai 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.

In its filing this week, the FCC said that its decision was reasonable and reasonably explained; that its repurposing excess spectrum to meet the burgeoning demand for unlicensed WiFi was in the public interest, and that it has the authority to repurpose spectrum and modify licenses.

On the issue reasonableness, the FCC said, there is "a pressing need for improved WiFi internet service and other unlicensed uses," and that the 5.9 GHz spectrum could be freed up "while also preserving ample capacity for present and anticipated vehicular-communications needs."

It said that was doable in part because vehicular communications have barely been employed in the band to date, while many of the anticipated uses for vehicle-to-vehicle communications have shifted to other technologies and spectrum bands.

On the other side of the coin, WiFi, which "barely existed" when V2V got the spectrum over two decades ago, "has exploded," the FCC said, driven in part by the rise in remote work and learning during and in the wake of the pandemic.

The FCC says it carefully balanced competing demands and exercised sound judgment using its spectrum-management authority.

Appeals courts generally give significant deference to regulatory agencies' subject matter expertise.

Intelligent auto tech makers and highway officials have sued the FCC to block its decision to open up 5.9 GHz spectrum—that had been reserved for licensed vehicle-to-vehicle communications—for unlicensed Wi-Fi.

That FCC decision had been strongly backed by cable broadband operators for whom Wi-Fi is still their principal mobile broadband play.

The Intelligent Transportation Society of America (ITS America) and the American Association of State Highway and Transportation Officials (AASHTO) filed their appeal of the FCC decision Tuesday (June 2) in the U.S. Court of Appeals for the District of Columbia, which has principal jurisdiction over FCC decisions. They want the FCC to reverse the decision to free up the majority of the 5.9 GHz band for unlicensed Wi-Fi.

Also Read: FCC Votes to Drive Wi-Fi Expansion

"[T]he Commission seriously undermined all of the technological progress and investment in the Safety Band [their branding of the 5.9 GHZ band] by reallocating the majority of the band for unlicensed Wi-Fi operations wholly unrelated to automotive safety," they said, adding that the FCC had ignored the advice of "the federal DOT, automotive safety professionals, automobile manufacturers, and state highway officials," who all had issues with the FCC decision.

They said the FCC was both wrong and exceeded its authority. "Keeping people safe is the top priority for every state DOT,” said AASHTO executive director Jim Tymon. “We believe the FCC ruling has undermined state DOTs’ ability to utilize the 5.9GHz safety frequency as it was intended to be used.” 

The FCC voted unanimously late last year—in the waning days of the tenure of FCC Chairman Ajit Pai—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.

Also Read: Wi-Fi Stakeholders High Five FCC 5.9 GHz Item

Current FCC acting Chairwoman Jessica Rosenworcel said at the time of the vote that it would "supersize Wi-Fi," which everyone is relying on during the pandemic.

"The FCC’s action ensures much-needed Wi‑Fi capacity for consumers while also promoting the development of new connected car technologies," said WiFi Forward, which strongly supported freeing up the spectrum for unlicensed. "The FCC acted well within its authority to oversee US airwaves, spent years thoroughly vetting and analyzing its rules and ultimately reached a unanimous, win-win decision that helps close the digital divide and ensure road safety. Both auto safety technology and broadband have progressed greatly since this spectrum was gifted to the auto industry twenty years ago – without significant development – and the FCC’s rules reflect today’s needs."

The Biden and Trump Justice Departments have at least one thing in common: Both support opening up the entire 6-GHz band for WiFi, a move pushed by cable operators and computer companies.

The Federal Communications Commission, under then-chairman Ajit Pai, voted unanimously last April to allow all 1,200 megahertz of the 6-gigahertz band to be shared with unlicensed WiFi, the regulator’s latest move in freeing up more spectrum for connecting 5G in-home devices — to enable video streaming and video calls — and for connecting internet of things (IoT) devices to the web.

The WiFi Forward coalition, whose members include NCTA–The Internet & Television Association and Google, has said that opening up the GHz band, combined with the FCC’s plan to free up 5.9 GHz spectrum, also for unlicensed WiFi, will add at least $183.44 billion to the U.S. economy over the next five years.

The FCC voted in October 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.

Broadcasters, telecoms and electric utilities, all using the 6-GHz band, tried to get the FCC to reconsider the decision, concerned about interference from unlicensed broadband access devices. When the FCC rejected that petition, they sued the commission in the U.S. Court of Appeals for the D.C. Circuit, which has principal jurisdiction over the regulator’s decisions.

AT&T, the lead party in the suit against the FCC, other telecoms and utility companies use the spectrum for backhaul. And while the telecoms are all for expanding WiFi, they said the FCC was opening up the entire band without what they argued were sufficient protections for incumbents.

Broadcasters favored protecting those already using the band for electronic news gathering (ENG) by reserving 80 MHz exclusively for journalists, saying there was too much risk of harmful interference to that even-more-crucial service in a time of pandemic.

The FCC, though, was convinced it could open up the entire band and still protect the incumbents, including by employing power limits. 

The Biden administration agreed, to the applause of Google and cable operators. Justice joined with the current FCC on a brief to the appeals court to that effect. 

The DOJ said it was satisfied the FCC knew what it was doing in imposing technical and operational limits on WiFi use of the band and deferred to the FCC’s expert judgment that those would prevent harmful interference.

Citing their indoor and outdoor use of the band for ENG, broadcasters were back at the FCC late last month contending there were “no 6-GHz unlicensed deployments that would provide real-world experience supporting the commission’s already tenuous conclusions about the likelihood of interference to licensed services.” 

Ford apparently thinks Ajit Pai has a better idea for sharing spectrum. The iconic automaker has come out in favor of the Federal Communications Commission chairman’s proposal for freeing up the majority of the 5.9-Gigahertz band currently reserved for vehicle-to-vehicle (V2V) communications for 5G while reserving the rest for V2V.

Pai is proposing to make the lower 45 Megahertz of the band available for unlicensed use, including WiFi, while reserving the upper 30 MHz for V2V, primarily the Cellular Vehicle to Everything (C-V2X) approach to intelligent vehicle communications.

That’s according to Pai himself, who tweeted that he was thankful for Ford’s support: “Grateful for @Ford Motor Company’s support of my proposal to reform the 5.9 GHz band to enable ‘cellular vehicle-to-everything’ technology. Without this proposal — deemed an ‘appropriate and timely step’ — ‘CV2X cannot be deployed,’ and ‘significant safety benefits [are] delayed.’”

Wrote Ford president James Hackett: “Extensive testing has shown that CV2X will give people the ability to move more safely and freely than ever before. Via the intended rulemaking process, the FCC is providing the opportunity for this technology to come to market.

“Without this proceeding, CV2X cannot be deployed,” Hackett added. “Without this proceeding, innovation is paralyzed. Without this proceeding, the opportunity to realize significant safety benefits is delayed. Triggering a deliberative process to carefully but expeditiously include CV2X as a crash avoidance technology is the appropriate and timely step. It will also mitigate congestion, reduce carbon emissions and lead to widespread socioeconomic benefits.”