The Intelligent Transportation Society of America (ITS America) and the American Association of State Highway and Transportation Officials (AASHTO) have asked the U.S. Court of Appeals for the District of Columbia Circuit to vacate the FCC’s decision to reallocate the lower 45 megahertz of the 5.9 gigahertz band for Wi-Fi use. The groups argue that the Commission’s action exceeded its authority.
In a petition for review and notice of appeal filed yesterday, the groups asked the court to leave intact the Commission’s decision to allow the upper 30 MHz of the band to be used for cellular vehicle-to-everything (C-V2X) technology.
The FCC item—which included a first report and order, further notice of proposed rulemaking, and order of proposed modification—was unanimously adopted in November 2020 (TR Daily, Nov. 18, 2020), but was not published in the Federal Register until last month (TR Daily, May 3).
"Safety has always been our top priority," Shailen Bhatt, president and chief executive officer of ITS America, said in a statement released today. "We are taking this action because V2X technologies continue to be our best available tool to significantly reduce crashes and save lives on American roadways."
"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."
"In the Order, the Commission seriously undermined all of the technological progress and investment in the Safety Band by reallocating the majority of the band for unlicensed Wi-Fi operations wholly unrelated to automotive safety," ITS America and AASHTO argued in their petition for review and notice of appeal. "Specifically, the Commission ignored the recommendations of the federal DOT, automotive safety professionals, automobile manufacturers, and state highway officials and reallocated the lower 45 MHz of the band—60 percent of the spectrum—for unlicensed use. The Commission retained the remaining 30 MHz at the top of the band for ITS but decided to sunset DSRC [dedicated short-range communications]and ‘choos[e] C-V2X as the sole ITS connected vehicle technology.’ … The Order also initiated a blanket modification of all DSRC licenses consistent with the reallocation."
"The Commission’s actions—taken over DOT’s vigorous objection—are in excess of the statutory authority granted to the FCC," the groups contended. "The FCC’s decision to reallocate 45 MHz of the 5.9 GHz band for use unrelated to automotive safety curtails the usefulness of the Safety Band, undercuts the goals of the Congressionally-established ITS program, and directly contravenes the recommendations of the agency responsible for designing and overseeing the ITS program. As a result, the Order 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. By reducing the size of the band by 60 percent and eliminating the ability to use DSRC technologies in the band entirely, the Commission has violated either Section 312 or Section 316 of the Communications Act, as it has either effectively revoked or at a minimum fundamentally changed the licenses held by incumbent DSRC licensees. … And because the FCC failed to properly evaluate record evidence related to the safety-related impacts of reallocation and the interference concerns posed by Wi-Fi devices, the Order is unlawfully arbitrary and capricious."
The groups said they "seek review of the Commission’s decision to reallocate the lower 45 MHz of the band and to modify incumbent licenses so as to prohibit the use of that spectrum. Petitioners ask this Court to vacate those portions of the Order while leaving intact the Commission’s decision to enable entities to obtain licenses to operate C-V2X technologies in the upper 30 MHz of the band, which constitutes a reasonable exercise of the FCC’s authority."
"The Order at issue here has both rulemaking elements and license modifications, and thus Petitioners’ claims collectively appear to invoke the Court’s jurisdiction under both Section 402(a) and Section 402(b)," the petitioners stated.
In response to the legal challenge filed by ITS America and AASHTO, WifiForward said, "The FCC’s action ensures much-needed Wi Fi capacity for consumers while also promoting the development of new connected car technologies. 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."
Meanwhile, the Alliance for Automotive Innovation today filed a petition for reconsideration asking the FCC to revisit its decision to reallocate the lower 45 MHz of the band for Wi-Fi use. "The FCC’s decision to reallocate most of the Safety Spectrum Band undeniably impacts road safety and the future of automotive innovation in the United States. We remain committed to deploying V2X technology. Through this Petition, Auto Innovators urges the FCC to reconsider its decision so that the safety and societal benefits of this technology can be maximized," the group said. —Paul Kirby, [email protected]
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