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'Nonexpert Veto'

5.9 GHz Order Review Offers 'Novel' Question for DC Circuit

The U.S. Court of Appeals for the D.C. Circuit’s decision on 5.9 GHz may not be as straightforward as its ruling on 6 GHz, because the court will have to grapple with a novel issue -- whether the FCC ignored the Transportation Equity Act and the Department of Transportation’s role in encouraging intelligent transportation systems when it reallocated the band, experts said. 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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In December, the D.C. circuit upheld the FCC’s order reallocating the 6 GHz band for unlicensed use, but it asked the FCC to address NAB concerns about interference in the 2.4 GHz band, in a clear win for Wi-Fi advocates and the FCC (see 2112280047). The 5.9 GHz appeal raises an issue beyond what the court examined in the other case.

"To the extent the FCC has a vulnerability in this matter, it stems from the broader balance consistently struck between the interests of spectrum coordination and sector-specific regulation,” said Ian Adams, International Center for Law & Economics executive director: “There’s a specific statute in question, and that statute directs the FCC to consider allocating spectrum for ITS purposes. In contrast, it limits the DOT’s role to an explicitly advisory capacity."

In spite of the statute’s plain meaning, [ITS America] and the other plaintiffs in this case have up-jumped the narrow remit of the DOT’s explicit statutory charge in a manner that would effectively create a nonexpert veto in all spectrum proceedings implicating federal agencies,” Adams said. Appellants didn’t comment Friday.

The FCC ignored federal law, ITS America, the American Association of State Highway and Transportation Officials and the Amateur Radio Emergency Data Network told the court. “The FCC and its supporters essentially ignore Petitioners’ argument that the Transportation Equity Act establishes Congressional policies that the FCC must consider when it chooses a course of action for intelligent transportation spectrum,” appellants told the court (see 2111100083): “These Congressional objectives insert a new policy goal into the Commission’s decisionmaking process that necessarily implicates the expertise and perspective of another federal agency. The FCC’s express refusal to consider the impact of the statute is itself fatal.”

The court has touched on the jurisdiction issue, recently asking (see 2201180069) lawyers to address it during oral argument: “What significance should be accorded to the fact that the United States through the Justice Department is representing the FCC not the Department of Transportation?”

The case raises “a novel issue,” said Public Knowledge Senior Vice President Harold Feld. The court’s order asking jurisdictional questions “would seem to indicate that the court is probably interested in avoiding that argument and simply deciding that petitioners do not have standing to raise that specific argument,” he said. The court “may be looking for some way to avoid a direct statutory ruling and instead find a different way to reject that argument,” he said.

The 6 GHz ruling was much more positive for the FCC than some court watchers feared, Feld said. “The FCC struggled at oral argument and there was a question about should we vacate or remand, which a lot of people saw as a signal that [judges] already decided they were going to reverse,” he said. Before the 6 GHz decision, it had been 10 years since the D.C. circuit “forcefully affirmed that [FCC] decisions about wireless interference are entitled to the highest degree of deference,” he said. The fight over the C band “is just one more example why it’s critical to have one voice, the FCC’s, that makes these decisions,” he said.

Congress didn’t shift any responsibilities for the 5.9 GHz band away from the commission and the court should see through that thin argument,” emailed former FCC Commissioner Mike O’Rielly, who voted to approve the order. “Then, we can finally get efficient use of the band and be amazed by new and innovative unlicensed services,” he said: “From a larger perspective, losing spectrum sides and their captive regulators shouldn’t relitigate sound decisions.”

The Transportation Equity Act “directs the FCC to consider spectrum needs for automotive communications, consistent with its role as the exclusive regulator of non‑federal government spectrum use,” said Alex Roytblat, Wi-Fi Alliance vice president-regulatory affairs. “Given this fact, I don't see any basis for challenging FCC authority to manage this spectrum in the public interest,” he said.

It is well settled that Congress vested the FCC with exclusive authority to allocate the nation’s airwaves,” said Michael Calabrese, director of the Wireless Future Program at New America. “The court will readily conclude that no legislation gives” DOT “superseding authority to decide what spectrum is allocated to meet vehicle-to-vehicle communication needs,” he said: “The simple fact is that the auto industry left 75 MHz parked idling and empty for 20 years, while the public interest in adding to the adjacent Wi-Fi band mushroomed in importance.”

The FCC had every right to strip the DOT entirely of this spectrum” but instead “reached a compromise with the automotive industry and, in direct consultation with the DOT, left them more than enough spectrum within the band” for safety applications, said Digital Progress Institute President Joel Thayer.

Free State Foundation President Randolph May also noted the transportation act requires the FCC only to consult with DOT. “There is clearly room for an improvement in the intergovernmental consultation and coordination process,” he said: “There’s fairly widespread agreement that the executive agencies have been derelict in this early identification and consultation function, which tends to have the effect of wrongly devaluing the FCC’s spectrum engineering expertise. And any new improved process also needs to have built into it a means for late-stage high-level involvement by the White House, if need be.”