Intelligent Transp. Soc'y of Am. v. Fed. Commc'ns Comm'n
| Citation | 45 F.4th 406 |
| Decision Date | 12 August 2022 |
| Docket Number | 21-1130,C/w 21-1131, 21-1141 |
| Parties | INTELLIGENT TRANSPORTATION SOCIETY OF AMERICA and American Association of State Highway and Transportation Officials, Petitioners v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents Continental Automotive Systems, Inc., d/b/a Continental Automotive Systems, et al., Intervenors |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Joshua S. Turner and Julian Gehman argued the causes for petitioners. With them on the joint briefs were Scott D. Delacourt and Sara M. Baxenberg.
Alan Fishel and Jeffrey Rummel were on the briefs for petitioner-intervenor Continental Automotive Systems, Inc.
Julie B. Kulovits was on the brief for amici curiae the American Traffic Safety Services Association, et al. in support of petitioners.
Scott M. Noveck, Counsel, Federal Communications Commission, argued the cause for respondents. With him on the brief were Robert B. Nicholson and Bryan J. Leitch, Attorneys, U.S. Department of Justice, and Jacob M. Lewis, Associate General Counsel, Federal Communications Commission.
Russell H. Fox, Thomas Scott Thompson, Timothy J. Simeone, Paul J. Caritj, Jason Neal, Rick C. Chessen, and Neal M. Goldberg were on the joint brief for intervenors NCTA - The Internet & Television Association and Wi-Fi Alliance in support of respondents.
Suzanne M. Tetreault and Sean Conway were on the brief for intervenor 5G Automotive Association in support of respondents. Jennifer B. Tatel entered an appearance.
Peter Karanjia was on the brief for amicus curiae CTIA - The Wireless Association in support of respondents.
Kathleen Burke was on the brief for amicus curiae Public Knowledge in support of respondents.
Before: Pillard and Walker, Circuit Judges, and Silberman, Senior Circuit Judge.
Intelligent transportation systems make driving safer by allowing vehicles to communicate with each other on the road. In 2020, the Federal Communications Commission reallocated a part of the radio spectrum from use by intelligent transportation systems to use by unlicensed devices such as Wi-Fi routers.
Several groups that want to retain their old use of the reallocated spectrum argue that the FCC's reallocation was arbitrary and capricious.
It was not.
Car crashes cause thousands of deaths and millions of injuries every year in the United States. Amendment of the Commission's Rules , 19 FCC Rcd. 2,458, 2,460 (Feb. 10, 2004). To combat that, Congress has long passed laws aimed at enhancing vehicle safety. See, e.g. , National Traffic and Motor Vehicle Safety Act of 1966, Pub. L. No. 89-563, 80 Stat. 718. One such law was the 1998 Transportation Equity Act for the 21st Century. Pub. L. No. 105-178, 112 Stat. 107.
That act instructed the Department of Transportation to "develop and maintain a national" intelligent transportation system to decrease accidents and improve overall travel efficiency. 23 U.S.C. § 517(a)(1). The theory was that cars would be equipped with intelligent transportation systems that allow them to communicate with each other and avoid accidents. 23 U.S.C. § 501(5) ().
But much like a cell phone or a Wi-Fi router, those intelligent transportation systems need an available section of the radio spectrum in which to operate. So part of the Transportation Equity Act required the Federal Communications Commission to "consider, in consultation with the Secretary [of Transportation], spectrum needs for the operation of intelligent transportation systems" by January 1, 2000. 23 U.S.C. § 502 note § 5206(f).1
The FCC allocated that spectrum in 1999. Amendment of Parts 2 & 90 of the Commission's Rules to Allocate the 5.850-5.925 GHz Band , 14 FCC Rcd. 18,221 (Oct. 22, 1999). It assigned a 75-megahertz band of the spectrum, from 5.850 to 5.925 gigahertz, for use by intelligent transportation systems. Id. ¶ 1. Various other services, such as amateur radios, are also allowed to use that band, which is often called the 5.9 GHz band. Id. ¶ 6.
For the next twenty years, intelligent transportation systems did not develop as the FCC had hoped they would. Use of the 5.850-5.925 GHz Band , 35 FCC Rcd. 13,440, ¶¶ 3, 7, 31 (Nov. 20, 2020). As of 2020, "no commercially-marketed vehicles" used the 5.9 GHz band to provide vehicle safety features. Id. ¶ 31. Instead, "many automotive safety functions ... such as alerting drivers to vehicles or other objects, lane-merging alerts, and emergency braking" have been "met by other technologies like radar, LiDAR, cameras, and sensors." Id. ¶¶ 32-33, 38.
So in 2019, the FCC began a new rulemaking process to ensure that the 5.9 GHz band was put to its best use. 5.9 GHz Band NPRM , 34 FCC Rcd. 12,603 (Dec. 17, 2019). The FCC proposed keeping the upper 30 megahertz of the 5.9 GHz band (5.895 to 5.925 GHz) for use by intelligent transportation systems and repurposing the lower 45 megahertz for use by unlicensed devices such as Wi-Fi routers. Id. ¶¶ 2, 13. The FCC also proposed changing the technology that would be used by intelligent transportation systems; vehicles would need to start using "vehicle-to-everything" communications (in which they send communications to cell towers and other devices) rather than the "dedicated short-range" communications originally permitted in 1999 (in which they do not send communications to cell towers). Id. ¶¶ 24-31.
The proposal received mixed reactions. Some commenters agreed that the FCC should repurpose part of the 5.9 GHz band to meet the ever-increasing spectrum demands of Wi-Fi routers and other unlicensed devices. See Use of the 5.850-5.925 GHz Band , 36 FCC Rcd. 1,444, ¶¶ 19, 21-24, 33, 45, 126-127, 132. But the Department of Transportation and many other commenters objected that the proposed reallocation would not provide an adequate spectrum band for intelligent transportation systems. Id. ¶ 44. In particular, commenters said that the reallocation would not provide a sufficient spectrum band for future technologies that are still developing. Id. And they worried that the unlicensed devices in the lower 45 megahertz of the 5.9 GHz band would interfere with the communications in the upper 30 megahertz. See id. ¶ 60.
In 2020, the FCC approved the proposed rule. Id. ¶ 1.
The Intelligent Transportation Society of America and the American Association of State Highway and Transportation Officials ("Transportation Petitioners") now petition for review, see 47 U.S.C. § 402(a), and appeal the FCC's order to us, see 47 U.S.C. § 402(b). They argue that we should vacate the part of the order reallocating the lower 45 megahertz of spectrum but leave in place the rest of the order dealing with what technology intelligent transportation systems use. The Amateur Radio Emergency Data Network ("Radio Petitioner") filed a separate petition for review. It argues that we should vacate the whole order.
We consider the petitions and appeal together.2
Under the Administrative Procedure Act, we overturn agency action when it is arbitrary, capricious, or otherwise contrary to law. 5 U.S.C. § 706(2). That "deferential" standard requires courts to ensure "that the agency has acted within a zone of reasonableness and, in particular, has reasonably considered the relevant issues and reasonably explained the decision." FCC v. Prometheus Radio Project , ––– U.S. ––––, 141 S. Ct. 1150, 1158, 209 L.Ed.2d 287 (2021). In doing so, we must accept agencies’ "findings of fact so long as they are supported by substantial evidence on the record as a whole." PSSI Global Services, LLC v. FCC , 983 F.3d 1, 7 (D.C. Cir. 2020) (quoting Neustar, Inc. v. FCC , 857 F.3d 886, 896 (D.C. Cir. 2017) ).
All the Petitioners argue that the FCC's order was arbitrary and capricious because it violated the Transportation Equity Act. The Transportation Petitioners also argue that the FCC failed to adequately explain its decision and unlawfully revoked or modified FCC licenses. We disagree on all fronts.
The FCC's order did not violate the Transportation Equity Act.
The FCC has "broad authority to oversee wire and radio communication in the United States" and must promote "effective use of radio in the public interest." Cellco Partnership v. FCC , 700 F.3d 534, 537, 542 (D.C. Cir. 2012) ; see also 47 U.S.C. §§ 151, 303. Part of that task is assigning "bands of frequencies to the various classes of stations" that will make use of the spectrum. 47 U.S.C. § 303(c).
To effectively assign frequency bands, the FCC "must predict the effect and growth rate of technological newcomers on the spectrum, while striking a balance between protecting valuable existing uses and making room for these sweeping new technologies." Teledesic LLC v. FCC , 275 F.3d 75, 84 (D.C. Cir. 2001). That is a difficult, highly technical task. So when the FCC "is fostering innovative methods of exploiting the spectrum, it functions as a policymaker and is accorded the greatest deference by a reviewing court."
Mobile Relay Associates v. FCC , 457 F.3d 1, 8 (D.C. Cir. 2006) (cleaned up).
All parties agree that the FCC's broad authority over the nation's airwaves initially allowed it to allocate 75 megahertz of the spectrum for intelligent transportation systems in 1999. Then, in 2020, the FCC relied on that same broad authority to update the 1999 allocation. Use of the 5.850-5.925 GHz Band , 36 FCC Rcd. 1,444, ¶ 123 (Nov. 20, 2020). At least as a general matter, that action was well within bounds. See National Cable & Telecommunications Association v. Brand X Internet Services , 545 U.S. 967, 981, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005) ().
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