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." ■
