Wi-Fi Advocates Not Concerned DC Circuit Will Reverse 5.9 GHz Order

Opponents of the FCC’s order reallocating the 5.9 GHz band raise a novel issue in a spectrum fight at the U.S. Court of Appeals for the D.C. Circuit -- whether the FCC violated a law requiring the allocation of spectrum for intelligent transportation systems. The FCC moved away from dedicated short-range communications (DSRC), the former allocation for the entire 75 MHz. Instead, the agency divided the band with 45 MHz set aside for Wi-Fi and 30 MHz for cellular vehicle-to-everything technology. Wi-Fi advocates say the court is unlikely to reverse the FCC in favor of the Department of Transportation.

ITS America and the American Association of State Highway and Transportation Officials asked the D.C. Circuit last month to reject the order (see 2106020076). The FCC “exceeds the Commission’s authority to allocate spectrum and grant radiofrequency licenses under the Communications Act, as that authority has been limited by Congress’s decision to establish a robust ITS program and delegate authority to manage that program exclusively to DOT.”

“We do not comment on the specifics of ongoing litigation,” said ITS America President Shailen Bhatt and AASHTO Executive Director Jim Tymon in a joint statement: “As stated in our notice of appeal, we believe the FCC exceeded its authority in reallocating the lower 45 MHz of the 5.9 GHz band away from transportation safety, over the objections of the USDOT and other transportation safety professionals -- and in violation of Congress’s clear policy mandate in the Transportation Equity Act [TEA]. For us, there is no greater priority than reducing fatalities on American roadways.”

More recently, the Amateur Radio Emergency Data Network also filed a challenge at the D.C. Circuit. The group specifically raised the requirements of TEA (see 2106290062). “AREDN has no comment until the court rules on the stay motion,” said a lawyer for the group.

The order was approved 5-0 in November, with concurrences by Democrats Jessica Rosenworcel and Geoffrey Starks, who both said allocating more spectrum for Wi-Fi is critical (see 2011180043).

In a Citizens Against Government Waste webinar last week, new Commissioner Nathan Simington noted it was the last major FCC decision before he became a member. What was adopted should “remain in place and to come to fruition,” he said. It remains to be seen whether DSRC advocates and DOT will be able to roll back parts of the order, he said. “I certainly hope that’s not the case; I haven’t heard any rumblings at the commission, but of course you never know,” he said.

“While courts are unpredictable, having spent so much time on 5.9 GHz and explored every view, the statutory argument presented is completely without merit,” former Commissioner Mike O’Rielly told us. “It’s a misreading of the law and congressional intent,” he said.

TEA was enacted “before the FCC allocated the 5.9 GHz band for automotive use,” which was “a bust since the allocation only permitted DSRC technology and was never widely adopted by the automotive industry over the intervening 20-year period,” Deborah Collier, CAGW vice president-policy and government affairs, told us.

Concerns have been raised “about potential interference from the unlicensed portion of the band with automotive communications [but] the FCC has qualified engineers who have been reviewing potential interference issues and found none that compelled them to hold off on reallocating the lower 45 MHz of the band for unlicensed use, while retaining the upper 30 MHz of the band for automotive communications,” Collier said. The FCC’s order was “a well-considered compromise that should not be retracted by the agency or overturned by the courts or Congress,” she said.

The TEA argument “is without merit because the congressional mandates clearly delineate that the DOT is to administer the ITS program while the commission has broad authority to manage spectrum in the public interest,” emailed Alex Roytblat, Wi-Fi Alliance vice president-regulatory affairs. “The 5.9 GHz band is already used to deliver connectivity to underserved areas and is uniquely suited to enhance the existing 5 GHz U-NII ecosystem,” he said: “It is difficult to fathom how backtracking on the unanimous decision would serve the public interest or advance communications policy priorities.”

It’s “very unlikely the court will find merit in the argument,” Public Knowledge Senior Vice President Harold Feld told us. “If they did, that would be a very big deal,” he said. “It would essentially give a heckler’s veto to any agency that’s named as using spectrum,” he said.