ATSSA leads effort in filing legal brief supporting reversal of FCC safety spectrum decision

ATSSA on Friday filed a friend of the court brief in support of the Intelligent Transportation Society of America (ITS America), the American Association of State Highway and Transportation Officials (AASHTO) and the Amateur Radio Emergency Data Network (AREDN), which are appealing an order by the Federal Communications Commission (FCC) to reallocate a portion of the 5.9 GHz spectrum band to unlicensed uses including WiFi.

The FCC voted unanimously on Nov. 18, 2020 to reallocate more than half of the safety band. The new rules adopted by the FCC make the lower 45 megahertz (MHz) of the spectrum available for unlicensed uses and require Intelligent Transportation System (ITS) licensees to stop using that portion of the spectrum within a year.

The FCC’s action came despite warnings from the U.S. Department of Transportation (USDOT), U.S. Department of the Treasury and multiple transportation safety-focused organizations including ATSSA.

The FCC order reallocated 60%, leaving 30 MHz of the initial 75 MHz that had been allocated for the safety band, the filing notes. “Safety experts warned that the reduction would prevent collision mitigation technologies and other ITS capabilities from realizing their expected benefits,” the brief states. And, that diminishing the safety spectrum endangers technological advancements in vehicle connectivity and smart infrastructure, and ultimately puts lives at risk.

ITS America, AASHTO and AREDN seek to overturn the FCC order in its entirety, alleging the FCC exceeded its authority, acted arbitrarily and that it “revokes or fundamentally changes incumbent licenses in violation of the Communications Act,” according to the initial joint opening brief filed on their behalf.

ATSSA, represented by Julie B. Kulovits of the Tenenbaum Law Group, filed an amicus curiae brief on Aug. 20 with the U.S. Court of Appeals for the District of Columbia Circuit. ATSSA was joined in its brief by the American Highway Users Alliance, the Institute of Transportation Engineers, the National Safety Council and MADD. An updated amicus curiae brief has since been filed.

In the brief, ATSSA notes the FCC order reallocates a dedicated 75 MHz band of radiofrequency spectrum known as the safety band. It notes the safety band was “first allocated in 1999 as part of a statutory directive in the Transportation Equity Act for the 21st Century [TEA-21] and has been reserved for intelligent transportation systems (ITS) that enable vehicles to communicate with each other along with roadway infrastructure and other nearby devices to improve roadway safety and efficiency.”

Under rules in the FCC order, most of the safety band will be rededicated to unlicensed WiFi operations rather than dedicated to uses related to roadway safety.

The brief notes that Congress prioritized traffic safety and development of ITS and that the FCC decision to reduce the size of the safety band contradicts that intent.

“Congress has recognized the extreme societal burdens caused by traffic crashes and the promise ITS offers to reduce these burdens. As a result, it has prioritized the development of ITS as the solution to address these issues,” the brief states. “As Petitioners point out, Congress’ direction regarding ITS has not been sporadic, inconsistent or wavering.  Rather, ‘[f]or 30 years, Congress has signaled a strong interest in establishing a robust nationwide ITS program … in order to reduce highway deaths and promote transportation efficiency.’

“Congress continues to advocate its support for ITS and its use of the Safety Band to date.”

The brief notes that a specific purpose of the ITS program created through the 1998 surface transportation reauthorization, TEA-21 was “to ensure a systems approach that includes cooperation among vehicles, infrastructure, and users.” It also noted that USDOT has responsibility for implementing TEA-21 and that the FCC “usurped” the department’s authority for the ITS program.

Nearly 6.5 million police-reported traffic crashes occur each year, resulting in almost 40,000 deaths and roughly 2.7 million injuries, according to statistics from the National Highway Traffic Safety Administration (NHTSA).

In its February 2015 Traffic Safety Facts, USDOT found that drivers were the critical reason for 94% of the crashes, including recognition error, decision error, performance error and non-performance error such as sleep.