FCC Should Finalize Rules for Spectrum Use in the 5.9 GHz Band

This month of July 2023, press outlets such as Communications Daily and FierceElectronics have reported on the fact that the FCC has not yet issued final rules that it proposed more than two-and-a-half years ago regarding use of the 5.9 GHz band. The Commission also has received ex parte filings regarding the lack of final rules. To date, the Commission has only granted some waivers for use of the band. The Commission should move expeditiously to finalize rules for use of 5.9 GHz band spectrum.

The FCC put a lot of work into its November 2020 order and proposed rulemaking that reallocated 45 MHz of spectrum in the 5.9 GHz band for unlicensed use. Indeed, the Commission carried out its work in the face of unusual public opposition from the Department of Transportation. The Free State Foundation filed public comments supporting the agency proposal that subsequently was adopted by the Commission in the 5.9 GHz Order. And FSF Senior Fellow Andrew Long wrote a November 2022 Perspectives from FSF Scholars, "The FCC's 5.9 GHz Proposal Would Advance Both Wi-Fi and Vehicle Safety," in support of the reallocation of the spectrum for unlicensed use. 

 

The Commission also put a lot of work in its successful defense of the 5.9 GHz Order at the D.C. Circuit in Intelligent Transportation Society of America v. FCC. Mr. Long wrote about that decision in an August 2022 blog post. The court's decision vindicated the FCC's primacy among federal agencies on commercial spectrum policy. 

 

The FCC ought to now finish what it started in the November 2022 order and proposed rulemaking and promote maximal value and use of the 5.9 GHz band. Clearing the decks on the 5.9 GHz band also would enable to the Commission to devote more of its attention to licensing other spectrum bands. 

D.C. Circuit Unanimously Affirms the FCC's 5.9 GHz Band Order

Earlier today, in a development that will benefit WiFi users and make way for modern wireless vehicle safety capabilities, the U.S. Court of Appeals for the District of Columbia Circuit unanimously affirmed the Commission's November 2020 Order repurposing 45 MHz of fallow spectrum in the 5.9 GHz band for unlicensed use.

In a Statement, NCTA – The Internet & Television Association called the court's decision in Intelligent Transportation Society of America v. FCC "an enormous victory for American consumers," one that will lead to "even more reliable high-speed Wi-Fi and access to next-generation automotive safety applications."

Image by Jagathish Saravanan

In 1999, the FCC dedicated 75 MHz of beachfront spectrum to a proprietary vehicle safety technology that never lived up to its promise. Over twenty years later, the 5.9 GHz Order put that valuable wireless capacity to its highest and best use, making 30 MHz available for successor intelligent transportation systems technologies and repurposing the lower 45 MHz for WiFi and other unlicensed services.

Free State Foundation President Randolph May and I filed comments in support of the FCC's proposal. And in a Perspectives from FSF Scholars published shortly before the Commission adopted the 5.9 GHz Order, I argued that it represented "a fresh approach to this vastly underutilized spectrum that advances both public safety and the capabilities of WiFi networks."

Regrettably, in one of several recent high-profile instances of a breakdown in interagency spectrum coordination efforts necessitating process reform, the Department of Transportation raised objections to the Commission's proposal outside of established channels.

Eventually, several interested parties challenged the 5.9 GHz Order in court.

As Free State Foundation Director of Policy Studies and Senior Fellow Seth Cooper explained in a December 2021 post to the FSF Blog, consistent with the Supreme Court's 1968 decision in U.S. v. Southwest Cable Company, "[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."

Today's decision does just that. In response to petitioners' claims that the 5.9 GHz Order "was arbitrary and capricious because it violated the Transportation Equity Act," the D.C. Circuit succinctly responded as follows: "It was not."

Specifically, the court held that:

[T]he Transportation Equity Act did not transfer away from the FCC its broad authority to manage the spectrum related to intelligent transportation systems. Instead, as the FCC noted, it simply required the FCC to account for the Department of Transportation's views and the needs of intelligent transportation systems when it does so. The FCC did that here.

Reps. Doyle and Latta Lay Out Plan to Reform Spectrum Management

Earlier today, on its "Congress Blog," The Hill published an op-ed penned jointly by Representatives Michael F. Doyle (D – PA) and Robert E. Latta (R – OH). Determined to avoid a repeat of the recent kerfuffle between the FCC and the FAA over 5G mobile operations in the C-Band, the two lawmakers set forth a four-element plan to overhaul interagency spectrum coordination processes.

As you undoubtedly recall, earlier this year the launch by Verizon and AT&T of 5G using C-Band spectrum licenses for which they contributed billions to the U.S. Treasury was impacted when, at the eleventh-hour, the FAA raised aviation-related concerns.

This occurred even though, prior to auctioning that spectrum, the FCC undertook a lengthy, deliberate, and engineering-informed process that considered, and addressed, potential interference.

Over the last few years, other disagreements regarding FCC efforts to repurpose high-value, underutilized spectrum similarly have played out in unprecedentedly high-profile fashion. They include the L-Band (vis-à-vis the Department of Defense), the 5.9 GHz band (the Department of Transportation), and the 24 GHz band (NASA and NOAA).

In "Aviation conflict highlights the need for spectrum management reform," Representative Doyle, Chairman of the House Energy and Commerce Committee's Subcommittee on Communications and Technology, and Representative Latta, its Ranking Member, expressed their well-founded concern that "declining faith in how these decisions are made is beginning to show signs of jeopardizing the consumer and economic benefits we've enjoyed for generations."

In response, the two laid out four principles that will guide their bipartisan efforts to "pursu[e] public oversight and restor[e] trust in the spectrum management process."

Those principles are as follows:

1. Reassert that it is NTIA that has the responsibility "to balance the needs and concerns of federal spectrum users, and to communicate those interests to its governmental counterparts and the public."
2. Promote "clear rules and expectations for federal and other spectrum users."
3. Ensure "that the government process for managing these critical spectrum resources [relies] on science and engineering …, not the institutional interests of a single federal agency."
4. Prioritize "the finality of [spectrum management] decisions."

Randolph J. May, the Free State Foundation's President, and Seth L. Cooper, its Director of Policy Studies and a Senior Fellow, made a number of similar points in "Congress Should Require Better Agency Coordination on Spectrum Policy," a February 15, 2022, Perspectives from FSF Scholars.

Specifically, Mr. May and Mr. Cooper (1) urged NTIA and the FCC to update their spectrum coordination Memorandum of Understanding to "expressly acknowledge NTIA's role in representing all executive branch agencies," (2) argued that "Congress should pass legislation to improve coordination among federal agencies," (3) noted with concern how the status quo "risks causing unnecessary delay and regulatory uncertainty," and (4) concluded that an improved process "could provide greater assurance to the public."

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. 

Wi-Fi Alliance Releases Report Highlighting Critical Role of Wireless Networks During COVID-19 Pandemic

2020 was a banner year for unlicensed spectrum. For the first time in decades, the FCC made available significant amounts of additional capacity for Wi-Fi. The Wi-Fi Alliance recently released a report that affirms the wisdom of those actions.

Long before the COVID-19 pandemic motivated many Americans to learn, work, seek treatment, and interact socially from the safety of their homes, Wi-Fi had started to outgrow unlicensed allocations in the 2.4 and 5 GHz bands. The exploding number of connected devices and ever-evolving requirements – higher speeds, lower latency – demanded not just more spectrum, but also contiguous wideband (160 MHz) channels able to take full advantage of Wi-Fi 6, the latest iteration of the technical standard.

The Commission responded in April by freeing up 1,200 MHz in the 6 GHz band for unlicensed use. I wrote in a February 2020 Perspectives from FSF Scholars about the potential of Wi-Fi 6 equipment operating in the 6 GHz band – branded commercially as "Wi-Fi 6E" devices – to modernize wireless networking.

In addition, in November the agency reallocated 45 MHz of spectrum in the 5.9 GHz band to unlicensed use. The Free State Foundation filed comments supporting that proposal, and I wrote a supporting piece, "The FCC's 5.9 GHz Proposal Would Advance Both Wi-Fi and Vehicle Safety," shortly before its adoption.

In a December 7 statement announcing the agency's approval of the first Wi-Fi 6E device, Chairman Ajit Pai highlighted the role that Wi-Fi has played during the current public health crisis and proclaimed a new era in wireless connectivity:

Today, we get an exciting glimpse of America's Wi-Fi future.... During the COVID-19 pandemic, we've all seen how Wi-Fi has enabled everything from work-at-home to telehealth to remote learning to streaming and gaming. Wi-Fi 6 will turbocharge each of these and more, and will also complement commercial 5G networks. Bottom line: The American consumer's wireless experience is about to be transformed for the better.

A December 2020 report prepared by Telecom Advisory Services LLC and released by the Wi-Fi Alliance quantifies just how important Wi-Fi networks are during these trying times. A few key takeaways:

• Global Wi-Fi use has increased roughly 82 percent during the pandemic.
• U.S. smartphone use of Wi-Fi increased over 10 percent in March.
• The number of devices connected to Wi-Fi networks has increased by 11 percent.
• The number of simultaneously connected devices has jumped at least 60 percent.

MEDIA ADVISORY: FCC's Actions Today Display Commendable Bipartisan Unity

The following statement may be attributed to Free State Foundation President Randolph May regarding today's actions by the FCC:

In a series of votes today, the FCC took some important steps to advance sound communications policy. Probably the most consequential action was the adoption of an order that immediately makes available additional spectrum for next-generation WiFi in the 5.9 GHZ spectrum band, while also reserving spectrum to be used to improve auto safety. While it is not to be expected that the commissioners always will agree across party lines on all consequential matters, nor should they, today's actions show that on many matters, especially those that are more technically and engineering-oriented such as spectrum allocations, they can and do agree on a bipartisan basis. In today's environment, and given the importance of more ubiquitous broadband connectivity and 5G deployment to the nation's social and economic well-being, this is worthy of note, and commendation.

Pending Proposal Would Dedicate 5.9 GHz Spectrum for Unlicensed Wireless Services

Free State Foundation President Randolph May tweeted the following regarding the FCC Chairman Ajit Pai's circulation of draft rules for dedicating 5.9 GHz spectrum for unlicensed services like Wi-Fi:

Announcement by @AjitPai that @FCC will vote to adopt rules for the 5.9 GHz #spectrum band is welcome and imp't. What it means is more WiFi, at higher speeds, for consumers, while also improving auto safety. @EvanS_FCC @BrendanCarrFCC @CTIA @IIABroadband https://t.co/FyVlLFMmA1 pic.twitter.com/GIt6x5rUpc

— Free State Foundation (@FSFthinktank) October 28, 2020

Study: Additional Spectrum for Wi-Fi Promises Economic Benefits

A recent study commissioned by WifiForward concludes that additional unlicensed spectrum could contribute nearly $200 billion to the U.S. economy.

In order to mitigate the COVID-19 public health crisis, government officials have taken significant steps to "flatten the curve." As a result, many business establishments deemed to be "non-essential" are closed. So, too, are schools. The ability to work and learn remotely mitigates the economic and social impact of these measures. In-home Wi-Fi networks operating in unlicensed spectrum make this possible by allowing consumers to connect multiple end-user devices – laptops, smartphones, tablets, etc. – to broadband facilities.

As a consequence, the use of both broadband and Wi-Fi has increased dramatically. NCTA – The Internet & Television Association reports that, since March 1, its cable operator members have witnessed a 20 percent increase in downstream traffic and a 34 percent increase in upstream traffic. Meanwhile, data released by Plume reveals that the number of Americans online at home during the day has increased 105 percent since January 29, from 22.6 to 46.2 million. The Free State Foundation can attest to this new reality, having conducted its first meeting by videoconference just a few days ago.

In a February 7 FSF Perspectives, I noted that, according to the Wi-Fi Alliance, Wi-Fi's global economic value in 2018 was nearly $2 trillion, of which 25 percent – $499 billion – was captured in the United States. In 2023, those numbers are expected to increase to $3.47 trillion and $993 billion, respectively.

A study released by WifiForward on April 13 predicts that additional Wi-Fi capacity could generate substantial economic gains. Specifically, it concludes that FCC proposals to allocate spectrum to unlicensed use in the 5.9 GHz and 6 GHz bands could contribute more than $183 billion to the U.S. economy over the next five years. This includes a $106 billion increase in Gross Domestic Product (GDP), $69 billion in producer surplus, and $8 billion in consumer surplus.

Thankfully, one day soon people will be able to return to their offices and schools. However, the long-term effects of the Coronavirus pandemic on how, and from where, people work and learn remain to be seen. One thing, though, is certain: Wi-Fi will continue to play an integral role.

The executive summary of the study by Dr. Raul Katz is available here.

C Proposes to Make 5.9 GHz Spectrum Available for Unlicensed Uses

Today, the FCC adopted a proposed rulemaking that would make valuable unused spectrum available for unlicensed Wi-Fi uses. According to the Commission's news release:

[T]he Commission proposes to designate the lower 45 megahertz of the band for unlicensed uses like Wi-Fi. This 45 megahertz sub-band can be combined with existing unlicensed spectrum to provide cutting-edge high-throughput broadband applications on channels up to 160 megahertz wide. 

Congratulations to the Commission and to Chairman Ajit Pai. The Commission's vote to issue its proposed rulemaking is an important step in making more spectrum resources available for wireless services.