Court upholds FCC’s decision on 5.9 GHz, Wi-Fi

A very long wait for some 5.9 GHz spectrum to be reallocated for unlicensed use – rather than the dedicated short-range communications (DSRC) it was originally allocated for – is finally coming to an end.

The Court of Appeals for the D.C. Circuit on Friday upheld the FCC’s decision to reallocate part of the 5.9 GHz band for unlicensed use. This is part of the spectrum that in 1999 was set aside exclusively for the auto industry to use for DSCR to improve auto safety. At that time, the full amount set aside was 75 megahertz.

After about 20 years, nothing ever really came of DSRC, and in 2020, the FCC divvied up the 75 megahertz, making 45 megahertz available for unlicensed use with the remaining 30 megahertz designated for auto safety. Specifically, the auto safety spectrum was reallocated for Cellular Vehicle-to-Everything (C-V2X) technology, a more modern tech than DSRC.  

The Intelligent Transportation Society of America and American Association of State Highway and Transportation Officials didn’t like the FCC’s decision and appealed, arguing that it violated the Transportation Equity Act. They also said the FCC unlawfully revoked or modified FCC licenses.

But Circuit Court Judge Justin Walker said it did not violate the act and said the court disagreed with the transportation officials’ arguments “on all fronts.”

The court’s decision is important not only for the 5.9 GHz band, but the FCC’s spectrum decision-making in general given the string of feuds that have occurred between the FCC and other government agencies, including the most recent and high-profile one involving the C-band and FAA.  

“The D.C. Circuit’s opinion is a victory for the public interest. Not only did the court reaffirm the FCC’s authority as the expert agency over spectrum decisions, but it also upheld the FCC’s correct call to stop bankrolling the auto industry’s speculation on Intelligent Transportation Services that were still in development after more than 20 years,” said Public Knowledge Policy Counsel Kathleen Burke in a statement.

Open Technology Institute at New America (OTI) filed an amicus brief, along with Public Knowledge, defending the FCC.

“Unsurprisingly, the D.C. Circuit reinforced its similar decision last December that the FCC has wide discretion to authorize unlicensed sharing of underutilized spectrum or even, in this case, to reallocate a portion of a lightly-used band to provide more bandwidth for next generation Wi-Fi,” said Michael Calabrese, director, Wireless Future Program at Open Technology Institute at New America, in a statement.

Since FCC Chairwoman Jessica Rosenworcel was a driving force behind the FCC’s unanimous 5-0 votes for to authorize unlicensed use of both the 5.9 and 6 GHz bands, consumer advocates expect she will now move quickly to complete both proceedings and “maintain the U.S. position as the global leader in Wi-Fi technologies,” he added.

In response to Friday’s D.C. Circuit Court of Appeals decision, Wilkinson Barker Knauer attorney Sean Conway, outside counsel to the 5G Automotive Association, said it’s time to move forward with C-V2X technology.

“In recent months, leading public and private sector transportation stakeholders have petitioned the FCC for waiver authority to begin widescale Cellular Vehicle-to-Everything (C-V2X) operations in the remaining 5.9 GHz frequencies reserved for intelligent transportation systems,” Conway stated. “Now that the D.C. Circuit has acted, it is time for the FCC to take the next logical step and grant these waiver requests to enable investment and innovation in C-V2X-powered transportation safety applications.”