FCC's "Unified Jurisdiction" over Commercial Spectrum Supports its 5.9 GHz Order

In January 2022, the D.C. Circuit will hear arguments in a case challenging the FCC's 2020 decision to repurpose spectrum in the 5.9 GHz band for flexible unlicensed wireless use, including Wi-Fi. The court ought to uphold the 5.9 GHz Band Order. Despite strong opposition to the order by the U.S. Department of Transportation (DoT) and by private litigants, the Commission's decision to repurpose 45 megahertz for unlicensed Wi-Fi was based solidly on the agency's delegated authority over commercial spectrum allocations. It's also good policy. The FCC's order will help realize the full economic and social benefits of next-generation Wi-Fi 6 technology. 

In Intelligent Transportation Society of America v. FCC, one of the questions the D.C. Circuit will address is whether the Commission's 2020 decision failed to comply Section 5206(f) of the 1998 Transportation Equity Act for the 21st Century (TEA). According to a court brief that was filed by private litigants on November 19, the Commission didn't consult sufficiently with the DoT regarding spectrum needs for the operation of intelligent transportation systems in the 5.9 GHz band. However, TEA Section 5206(f) was directed toward an FCC rulemaking that was to be completed before January 1, 2000. And the Commission did that. Nothing in the TEA alters the Commission's jurisdiction over commercial spectrum or its authority to issue the 5.9 GHz Order. 

In U.S. v. Southwest Cable Company (1968), the Supreme Court described Congress's establishment of the FCC "to serve as the single Government agency with unified jurisdiction and regulatory power over all forms of electrical communications, whether by telephone, telegraph, cable, or radio." The Commission's power to "prescribe the nature of the service to be rendered by each class of licensed stations," "assign bands of frequencies to the various classes of stations," and make rules and regulations necessary to carry out such purposes is contained in Sections 303(b), -(c), and –(g) of the Communications Act. Also, Section 303(r) authorizes the Commission to "generally encourage the larger and more effective use of radio in the public interest." 

The FCC exercised this considerable authority over spectrum when it reallocated the lower 45 megahertz of the 5.850-5.925 GHz band for unlicensed use and reassigned the upper 30 megahertz of the band for vehicle communications. Public policy reasons for supporting that reallocation were offered by Free State Foundation President Randolph May and Senior Fellow Andrew Long in public comments filed in the 5.9 GHz band proceeding in March 2020. 

 

Both before and after the Commission approved its 5.9 GHz Band Order, the DoT publicly opposed the reallocation of spectrum for unlicensed Wi-Fi use. DoT claimed future Wi-Fi use in the lower part of the band causing potential out-of-band interference with transportation-related communications. But the FCC's order included measures to prevent such potential interference. The Commission has recognized expertise in spectrum engineering matters and in adjudicating disputes over alleged signal interference claims.

 

Regrettably, the DoT's attempts to stall or undo the Commission's implementation of commercial spectrum policy fits a disturbing pattern. Over the last few years, executive branch agencies – such as the Department of Commerce, the Department of Defense, and the Federal Aviation Administration (which is housed within the DoT) – have tried to undermine the FCC's decisions regarding commercial spectrum allocations intended to advance 5G and Wi-Fi 6 networks. And although the DoT never denied the Commission's authority over commercial spectrum reallocation decisions, private litigants have continued the fight over the 5.9 GHz band.

A decision by the D.C. Circuit to uphold the 5.9 GHz Order would constitute a small but helpful step toward vindicating the FCC's "unified jurisdiction and regulatory power" over commercial spectrum from interference by other federal agencies.