In Win for FCC, Wi-Fi, Unanimous DC Circuit Panel Upholds 5.9 GHz Order

The U.S. Court of Appeals for the D.C. Circuit upheld the FCC’s 2020 5.9 GHz order Friday, allocating 45 MHz of the band for Wi-Fi and 30 MHz for cellular vehicle-to-everything technology, in a win for the agency. As the court did in December on the 6 GHz order (see 2112280047), judges clarified in strong language that the FCC has significant discretion in spectrum decisions. ITS America and the American Association of State Highway and Transportation Officials brought the case, which was argued in January (see 2201250066).

“We agree that the FCC does not control intelligent transportation systems,” said the decision by Judge Justin Walker. “But it has a statutory duty to allocate the spectrum to its best use,” he wrote: “Figuring out how much of the spectrum is needed to support a particular activity is exactly what the FCC does. Sometimes that involves analyzing the technical features of a spectrum use to figure out what range is actually needed, as the FCC did here.” Judges Cornelia Pillard and Laurence Silberman joined the decision.

Walker noted the Department of Transportation itself produced an analysis showing safety applications that could potentially eliminate a large proportion of crashes may require only 10 MHz of spectrum. “So according to the Department’s past analysis, nothing near 75 megahertz of the spectrum is necessary for intelligent transportation systems that could greatly reduce car accidents,” he said. The FCC had the support of the executive branch, which “assessed the case’s merits and considered the federal interests,” he said. Through DOJ, the administration “joined the FCC’s brief defending the FCC’s order,” he said.

The FCC considered all the concerns raised before reallocating the band, Walker said. “It devoted at least twenty paragraphs of its order to carefully considering the needs of intelligent transportation systems and to thoroughly explaining that the remaining 30 megahertz of the spectrum will support such systems.”

“We are disappointed and frustrated that the FCC and the Court disregarded our collective expertise and feedback, ignoring the importance of transportation safety and ignoring the importance of using these technologies to stop the public health emergency on our nation’s roadways,” said ITS America CEO Laura Chace. “The FCC instead continued to prioritize economic interests over public safety,” she said: “Despite this disappointing ruling, we will continue our efforts to ensure the remaining 30 MHz is free from dangerous interference and advances transportation safety.”

The decision "marks another solid win for then Chairman Ajit Pai’s strong record of spectrum leadership," Commissioner Brendan Carr said. “At the FCC, we should welcome today’s court decision as a call to return to freeing up spectrum at the pace and cadence we have been moving. I look forward to continue to work with my FCC colleagues on doing just that."

Wi-Fi advocates, which had pushed to have the band reallocated for unlicensed use, hailed the decision. Advocates have said further FCC decisions on the band appeared to be on hold pending the ruling (see 2207260052).

The court's ruling “is an important victory for America’s technological leadership, economy and, most importantly, consumers who rely on Wi-Fi connectivity, now more than ever,” Alex Roytblat, Wi-Fi Alliance vice president-worldwide regulatory affairs, told us. “I’m hopeful that following this decision, the commission will proceed swiftly to realize the full benefit of the U-NII-4 spectrum."

“The Commission’s unanimous, bipartisan order modernizes a band that was primarily unused for over 20 years, and today’s court decision enables that important 5.9 GHz spectrum to provide consumers with even more reliable high-speed Wi-Fi and access to next-generation automotive safety applications,” said NCTA.

“Thrilled to see the D.C. Circuit decisively reject challenges to the [Ajit] Pai FCC's decision to reallocate part of the 5.9 GHz band for Wi-Fi and other unlicensed use!” tweeted Matthew Berry, former FCC chief of staff. “Another example of how we were willing to take on (and win) tough fights to produce results for the American people,” he said.

The D.C. Circuit's decision reaffirms the FCC's role as the authority for deciding how to use the limited airwaves, Public Knowledge Policy Counsel Kathleen Burke tweeted. Like the NTIA/FCC memorandum of understanding update (see 2208020076), "this is important given the recent interagency spectrum squabbles *cough* FAA *cough,*" she said.

It also lets the FCC proceed with its decision to open unlicensed spectrum for next-generation Wi-Fi and allow rural wireless ISPs to boost their networks' stability and bandwidth, said Burke. And it reaffirms the commission's decision to reallocate 45 MHz of the 5.9 GHz band to unlicensed adjacent to the unlicensed spectrum in the 5.8 GHz band, she said. "This means lots of existing equipment can start using it immediately -- meaning the public gets the benefits of there being more unlicensed fast," she said.

“The Commission conducted a years-long, deliberative process and judiciously opened previously-unused spectrum for consumers to benefit from improved wireless broadband and other applications using unlicensed technologies,” said a statement by WifiForward. “Today’s decision means we will see both faster, better broadband and safer vehicles,” the group said.

The decision is a "big win for efficient spectrum use," tweeted ITIF Director-Broadband and Spectrum Policy Joe Kane. He called it "mostly a win for FCC authority over spectrum allocation. Spectrum policy always involves tradeoffs, but it's up to the FCC to make them, even if other agencies disagree." Former FCC Commissioner Mike O'Rielly in a tweet, said the decision was "absolutely great news." "Adding this 45 MHz to the US unlicensed portfolio after a long, long fight," he said. "And we get to see what CV2X can bring to auto safety."