Judges Skeptical of Arguments Against FCC on 5.9 GHz
Judges appeared sympathetic to the FCC Tuesday during oral argument on whether the agency overstepped in reallocating the 5.9 GHz band, with the lawyer for ITS America and the American Association of State Highway and Transportation Officials facing tough questions from a panel of the U.S. Court of Appeals for the D.C. Circuit. The FCC’s 2020 5.9 GHz order allocated 45 MHz of the band for Wi-Fi and 30 MHz for cellular vehicle-to-everything technology.
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“The FCC has taken an extraordinarily broad view of its authority to determine what is in the public interest, so broad that they say it’s not even impacted by Congress’ decision to mandate the creation of a program designed to reduce the nearly 40,000 deaths each year on the highway,” said Joshua Turner, arguing for the transportation groups: “Is fully supporting that congressional priority in the public interest? The FCC says no.”
“As I read the Transportation Equity Act, it doesn’t require really anything in particular other than attention to the emerging intelligent transportation possibility,” said Judge Cornelia Pillard. “What is in the act that’s required that wasn’t taken?” Turner responded “no specific safety benefit” is “mandated” but noted the law gives the Department of Transportation the authority to manage the safety program.
Judge Laurence Silberman said the D.C. Circuit has said “single-issue agencies often don’t have the right answer and the president is entitled to consider” a broader spectrum of views. Since the U.S. government supports the FCC in the case, “can we conclude” DOT’s views “are no longer espoused by the executive branch?” he asked: “Why are they relevant anymore?” The FCC sought public comment, he said: “Why wasn’t that adequate?”
DOT’s views “were relevant” at the time the FCC issued its 5.9 GHz order in 2020, Turner said. “That’s all that the independent agency had. It had to consider the record that was before it and make its decision. DOT said you’re not doing the right thing here.”
Pillard said the FCC had “extensive comments” from DOT and “considered those.” She asked how much more the commission had to do “to fulfill its duty of consultation.”
The FCC had a higher duty to consult with DOT than with other parties, Turner said. Transportation safety advocates said 30 MHz isn’t enough to meet their needs, he said. The FCC instead “listened to the cable industry,” the Open Technology Institute and Public Knowledge, he said.
“The FCC made a reasonable, record-based determination” that 30 MHz was enough for safety applications, commission lawyer Scott Noveck told the court. Petitioners never “clearly demonstrated” they would offer “features” in 75 MHz they can’t do in 30, he said. “There was a real dearth of any evidence in the record” on “when or if” safety applications will be deployed.
The band was dedicated to highway safety 20 years ago “and there’s no evidence that anyone has gotten anything off the drawing board,” Noveck said. Holding “spectrum in reserve” for any use has “significant real-world costs,” he said: “On this record the commission couldn’t justify doing that.”
Pillard asked Noveck whether “the speculativeness of the harm” alleged should raise standing questions for appellants. “We haven’t challenged their standing here,” Noveck said: “We do think it’s on very shaky ground.”
Judge Justin Walker asked about the amount of spectrum in 5 GHz and 6 GHz dedicated to unlicensed use and whether the 30 MHz will be reserved for safety.
No change is “on the horizon,” Noveck said. “The commission embraced the importance of maintaining” the 30 MHz “for vehicular communications, and went out of its way to set up limits on adjacent use,” he said.
DOJ lawyer Bryan Leitch attended the hearing to answer to questions about why the department filed with the FCC but wasn’t asked any. DOJ’s written explanation answered all his questions, Silberman said.
“The loss of life is devastating, particularly given recent trends -- roadway fatalities increased eight percent in 2020 (over 2019) and by another 18 percent in the first half of 2021,” said ITS America President Laura Chace. “Connected vehicle technology is our best tool to make roads safer and save lives, and we can’t leave it on the sidelines.”
“State departments of transportation are heavily vested in the development and deployment of connected and automated vehicles that have tremendous potential in significantly improving safety, mobility, and accessibility for all people,” said Jim Tymon, AASHTO executive director.