United States: FCC Proposes New Rules And Spectrum Reallocation That Could Change The Future Of Auto Safety Communications – Agency Seeks Comments And Input

The Federal Communications Commission recently issued preliminary proposed rules that could dramatically change the future of vehicle-to-vehicle (V2V) safety communications on American roads.¹

The agency proposes to reallocate most of the 5.9 GHz spectrum band − long reserved exclusively for Dedicated Short Range Communications (DSRC) "connected car" safety use − to unlicensed operations such as Wi-Fi and to Cellular Vehicle-to-Everything (a proposed alternative road safety technology). The proposed reallocation of spectrum previously reserved for connected cars and roadway safety to Wi-Fi and similar uses is likely to be controversial. And, because the alternative technologies for V2V safety applications now split the auto industry, the FCC's accompanying proposal to reallocate most if not all of the remainder of the 5.9 GHz band to a new and largely untested technology also will be controversial. Supporters and opponents of these and related proposals will have an opportunity to press their case in the upcoming public notice-and-comment rulemaking.

Acting at the direction of Congress, in 1999 the FCC reserved the 5.9 GHz spectrum for DSRC, a technology intended to facilitate vehicle-safety-related communications and an Intelligent Transportation System. Although automakers and equipment manufacturers have invested in development and testing aimed at deployment of DSRC, development has proceeded slowly and deployment has been limited. In part because of this slow pace of development, the FCC has now proposed to reallocate the 5.9 GHz band to other uses.

First, the Commission proposes to reallocate 45 megahertz of the 75 megahertz band to unlicensed devices and operations. The proposal supports the reallocation by pointing to rapidly expanding demand for more and faster Wi-Fi service and the adjacency of the 5.9 GHz band to existing unlicensed spectrum.  Because the proposal would make available a single 160 megahertz channel available for unlicensed uses, the agency preliminarily concludes it would maintain "the US's role as an innovator and global spectrum policy leader." The preliminary proposal would apply technical and operational rules similar to those that apply to Wi-Fi services to the substitute unlicensed uses of spectrum.

It appears that the proposed spectrum reallocation would not await the completion of the FCC's ongoing testing program aimed at determining if unlicensed devices could effectively share the 5.9 GHz band with DSRC. To date, only the first, laboratory phase of that three-phase testing has been completed. The proposal declines to wait for the conclusion of this testing before reallocating spectrum. As the agency notes, this is a departure from its previous approach of exploring, through testing, possible spectrum sharing between unlicensed uses and DSRC.

Second, the proposal posits that the remaining 30 megahertz in the 5.9 GHz band is likely sufficient to support V2V safety systems and other Intelligent Transportation System functions. The proposal seeks comments on that tentative conclusion.

Third, the FCC proposes to authorize a new technology, Cellular Vehicle to Everything (C-V2X), in the upper 20 of the 30 remaining megahertz of the band, supplanting DSRC. This proposed reallocation of spectrum is consistent with a waiver request submitted by the 5G Automotive Association, a coalition of some automotive companies, telecommunications equipment makers, and other interested parties.

C-V2X technology is not compatible with DSRC, so the two technologies cannot be used in the same channel. C-V2X technology also has not been part of the FCC’s ongoing testing program that seeks to determine operational compatibility of existing ITS technology and operations with unlicensed uses of the same spectrum band. The FCC proposal also seeks comments on whether 20, or even 30, megahertz of spectrum is sufficient to allow effective ITS operations, including potential future expansions and related services.

Fourth, the proposal seeks comments on whether the agency should allocate the last remaining 10 megahertz of the 5.9 GHz band to DSRC. The request for comments asks what kind of DSRC-services could be provided using just 10 megahertz of spectrum and whether DSRC could provide any services that cannot be provided by C-V2X. Alternatively, the Commission proposes to adopt service rules solely for C-V2X, which would result in authorization of all remaining spectrum (30 megahertz) for that technology while effectively  eliminating DSRC-based services.

To varying extents, the proposals could frustrate the plans and investment-backed expectations of companies, governments, and others who have invested in developing, testing, and deploying DSRC technologies over the last decade. Perhaps recognizing this, the proposal seeks comments on transition paths for existing DSRC operations and ITS implemented using DSRC. This week, Democratic and Republican leaders of the Transportation and Infrastructure Committee of the US House of Representatives announced their opposition to the proposed spectrum reallocation, and called on the FCC to abandon the proposal.

The FCC proposal does not discuss the pending Department of Transportation (NHTSA) V2V rulemaking proceeding, which is predicated on using the full 5.9 GHz band for V2V and ITS communications. The rulemaking notice for that proceeding calculated that, when fully deployed, DSRC-based safety applications could avoid 425,000 to 595,000 crashes and save 955 to 1,321 lives annually. The DOT rulemaking notice further estimated the savings (benefits) enabled by such safety applications would eventually reach approximately $53 to $71 billion in real terms. After the issuance of that proposal, DOT has stated that it no longer seeks to mandate the exclusive use of a particular technology (e.g. DSRC), but that it supports the continued dedication of the entire 5.9 GHz spectrum to vehicle safety uses. Commenting on the FCC proposal, a DOT spokesperson said the full 75 MHz "must be preserved for transportation safety purposes."

Watershed changes affecting a broad swath of entities and industries

This is a significant rulemaking proposal that seeks to make watershed changes in the use of spectrum, Intelligent Transportation Systems, and the future of auto and road safety and communication applications in the United States. Its resolution will affect a broad swath of entities and industries, including automakers, auto equipment manufacturers, technology companies, state and municipal governments, unlicensed spectrum users and equipment manufacturers, insurers, and individual motorists. In addition to the major changes outlined above, the proposal seeks comments and input on numerous important related questions, issues, and assumptions.

Consider providing input

If you are a potentially affected person or business, you may wish to submit comments about this important, multi-part proposal. The FCC proposal raises many questions, and affected entities should consider providing input and addressing issues raised by that proposal. Participation in the proceeding also offers a valuable opportunity to seek changes in the proposed rules.

The full Commission will consider the preliminary NPRM at its next open meeting on December 12, 2019. If the Commission approves the NPRM, it will submit the approved version to be printed in the Federal Register. Public comments will then be due on or before 30 days following publication in the Federal Register (likely sometime in early 2020).

DLA Piper has skilled and experienced transportation and telecommunications regulatory attorneys and policy professionals who can assist with contacting the FCC about this proposal and in developing and filing comments on the proposal. To seek assistance in participating in this proceeding, please contact the author, former NHTSA Chief Counsel Paul Hemmersbaugh.

Footnote

1 Note this is a preliminary NPRM scheduled to be considered by the Commission at its December 2019 open meeting. It is preliminary and subject to change based on the Commission's review and official action.

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