10/20 DC Circuit 5.9 GHz Amicus Brief

New America's Open Technology Institute filed an amicus brief alongside Public Knowledge with the United States Court of Appeals for the District of Columbia responding to arguments made in a legal challenge to the Federal Communications Commission's (FCC) decision to open up 45 megahertz of spectrum for unlicensed use in the 5.9 GHz band. An introduction is available below:

Unhappy that the Federal Communications Commission (FCC or the Commission) has decreased their spectrum bankroll, Appellants and Intervenors are trying to chase their losses to the Court. But the Court cannot offer their desired relief because the FCC properly determined that the public interest called for reallocating our nation’s limited spectrum resources.

It is well settled that Congress vested the FCC with exclusive control over the nation’s airwaves. Congress “gave the Commission not niggardly but expansive powers” to carry out its “comprehensive mandate to encourage the larger and more effective use of radio in the public interest….” Importantly, “[i]f time and changing circumstances reveal that the ‘public interest’ is not served by application of the Regulations, it must be assumed that the Commission will act in accordance with its statutory obligations.” This is exactly what happened here. The Commission first allocated spectrum to ITS services over 20 years ago.3 Since then, time and changing circumstances have revealed that the original allocation of 75 megahertz of spectrum to ITS services no longer serves the public interest.

First, despite Appellants’ claims, the record before the Commission demonstrated that 30 megahertz is more than sufficient to deliver the public safety benefits promised by ITS services. The record explicitly demonstrated that ITS licensees do not need the 45 megahertz of spectrum reclaimed by the Commission for public safety purposes—especially in light of the conversion to the more modern and efficient C-V2X technology. After more than 20 years of unmet promises, the Commission’s skepticism that continuing to allocate 75 megahertz to ITS licensees would lead to any new safety innovations, not just profitable non-safety related commercial services, was justified. What is at stake is not safety, rather it is access and control over one our nation’s most valued and limited resources—spectrum.

As the age-old saying goes, “when someone claims it’s not the money, it’s the principle—it’s really about the money.” Since the early 2000s, the auto industry has hoped to monetize the excess capacity not needed for public safety. As documented by the Open Technology Institute at New America (OTI), the auto industry has long discussed the ability to monetize this free spectrum by offering services such as targeted mobile advertising and streaming entertainment. ITS supporters have consistently refused to accept a non-commercial condition that would prevent them from exploiting the “safety band” for commercial purposes.

Tellingly, despite claiming to need 75 megahertz for public safety, ITS supporters failed to identify in the record any specific use case that required this much spectrum. Instead, ITS supporters relied on vague, generalized statements about how reallocation would prevent some unspecified future safety technology from being deployed. As Commissioner O’Reilly observed in his concurring statement, ITS licensees’ desire for excess free spectrum to offer targeted mobile advertising and other commercial services is not in the public interest.

Second, the Appellants and Intervenors seek to portray the Commission’s action here as an arbitrary pruning of public safety for the sake of trivial entertainments on WiFi. But as the record shows, the exact opposite is true—the expansion of unlicensed spectrum access will itself save lives and improve the public’s quality of life.

Moreover, the Commission properly relied on its experience during the COVID-19 pandemic to determing that permanently reallocating the lower 45 megahertz of the 5.9 GHz band will enhance the delivery of rural broadband. The Commission granted Special Temporary Authority (STA) to more than 100 wireless ISPs primarily to operate in rural areas using this same spectrum at the beginning of March 2020.7 Some Wireless Internets Service Providers (WISPs) increased capacity as much as 75 percent with the added support of the 5.9 GHz band, and crucially, there have yet to be any reports of harmful interference or problems associated with the STA grants. The success of these STA grants demonstrates the very real public benefits reallocating this spectrum permanently will have on rural america. This will not only permit delivery of life-saving telemedicine services (in addition to critical educational services and other services) to rural Americans. It will also make these high-bandwidth, latency sensitive services available to all Americans by making it possible to adopt next generation Wi-Fi technologies, such as Wi-Fi 6. By splitting the spectrum pot with unlicensed use, the Commission appropriately allocated spectrum in a way that will best serve the public interest by saving lives and closing the digital divide.