United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 25, 2022 Decided August 12, 2022
No. 21-1130
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
Consolidated with 21-1131, 21-1141
On Petitions for Review and Appeal of an Order
of the Federal Communications Commission
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.
2
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.
Opinion of the Court filed by Circuit Judge WALKER.
3
WALKER, 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.
I
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) (defining an “intelligent
transportation system” as “electronics, photonics,
communications, or information processing used singly or in
combination to improve the efficiency or safety of a surface
transportation system”).
4
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
1
“Radio spectrum is the part of the electromagnetic spectrum
ranging from 1 Hz to 3000 GHz (3 THz). Electromagnetic waves in
this frequency range, called radio waves, have become widely used
in modern technology, particularly in telecommunication. The
spectrum is divided into different frequency bands, and each band
has been allocated for a specific application ranging from
aeronautical and maritime communication to AM and FM radio
stations.” What Is Radio Spectrum, U.S. Department of
Transportation (Sept. 21, 2017), https://www.transportation.gov
/pnt/what-radio-spectrum.
5
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.
6
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
II
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, 141 S. Ct. 1150,
1158 (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)).
2
We need not decide whether 47 U.S.C. § 402(a) or (b) “is the proper
vehicle for our review if we have jurisdiction by the one procedural
route or the other,” as we do here. PSSI Global Services, LLC v.
FCC, 983 F.3d 1, 6 (D.C. Cir. 2020) (cleaned up).
7
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.
A
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
8
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 (2005) (an agency “must
consider . . . the wisdom of its policy on a continuing basis, for
example, in response to changed factual circumstances”
(cleaned up)).
The Transportation Petitioners respond that although the
FCC normally has broad authority to manage the use of the
spectrum, the Transportation Equity Act curbed that authority
by directing the FCC to “consider, in consultation with the
Secretary [of Transportation], spectrum needs for the operation
of intelligent transportation systems” and to complete “a
rulemaking considering the allocation of spectrum” by 2000.
23 U.S.C. § 502 note § 5206(f). According to the
Transportation Petitioners, the FCC here went beyond its
power as narrowed by the Transportation Equity Act.
But the 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. Use of the
5.850-5.925 GHz Band, 36 FCC Rcd. 1,444, ¶ 123.
The FCC did that here. It devoted at least twenty
paragraphs of its order to carefully considering the needs of
intelligent transportation systems and to thoroughly explaining
9
that the remaining 30 megahertz of the spectrum will support
such systems. Id. ¶¶ 27-46.3
That is not to say that the FCC could have allocated 75
megahertz for intelligent transportation systems on December
31, 1999, and then turned around the next day and arbitrarily
taken it all away based on its broad authority to manage the
spectrum. Regardless of whether that action would have
violated the Transportation Equity Act, it would have violated
the Administrative Procedure Act. See 5 U.S.C. § 706(2); see
also FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515
(2009) (when an agency departs from a prior policy, it “must
show that there are good reasons for the new policy”). But that
scenario is quite different from today’s — where much has
changed in the two decades since the original allocation and
where the FCC’s final order adequately addressed the
Department of Transportation’s concerns.
Finally, the Radio Petitioner argues that the Transportation
Equity Act gives the Department of Transportation a veto
power over the FCC’s spectrum-allocation authority. That is a
turbocharged version of the Transportation Petitioners’
“consider” and “consultation” argument, which we have
already rejected.
Plus, if the Radio Petitioner were right, the Department of
Transportation could step into any rulemaking in which the
FCC is allocating part of the spectrum and demand that the
3
In addition, we are told that the FCC consulted with the Department
of Transportation by sharing a prerelease of its proposal to reallocate
part of the 5.9 GHz band and later a prerelease of its final order. In
both instances, the Department of Transportation replied with a letter
expressing concerns about the proposal similar to those it made
during the public notice-and-comment period. See JA 386-414, 563-
76.
10
FCC put the spectrum band in question to intelligent
transportation uses. It is far-fetched to think that Congress
would so indirectly strip the FCC of its broad power to manage
the spectrum. Cf. Whitman v. American Trucking Associations,
531 U.S. 457, 468 (2001) (Congress “does not alter the
fundamental details of a regulatory scheme in vague terms or
ancillary provisions”).
B
The FCC adequately explained its conclusion that “30
megahertz is sufficient for the provision of core vehicle safety-
related [intelligent transportation system] functions.” Use of
the 5.850-5.925 GHz Band, 36 FCC Rcd. 1,444, ¶ 35.
To reach that conclusion, the FCC relied on many
comments explaining why the remaining 30 megahertz of
spectrum would sufficiently support intelligent transportation
systems. Id. ¶ 33. The FCC also noted that the original 5.9
GHz band allocated only 20 of the initial 75 megahertz of
spectrum “for vehicle-to-vehicle safety communications for
accident avoidance and mitigation” and “for public safety
applications involving safety of life and property, including
road intersection collision mitigation.” Id. ¶ 35. The 30
megahertz of the spectrum preserved by the FCC’s 2020 order
is thus a larger band than was allocated for traffic-safety
purposes under the original rulemaking. Finally, the FCC
explained that other technologies have alleviated the need for
all 75 megahertz of the spectrum to remain dedicated to
intelligent transportation systems. Id. ¶¶ 32-33, 38. Those
other technologies include “radar, LiDAR, cameras, and
sensors.” Id. ¶ 33.
In response, the Transportation Petitioners make five
arguments.
11
First, because the FCC lacks the Department of
Transportation’s traffic-safety expertise, the Transportation
Petitioners argue that we should not defer to the FCC’s
judgment that the remaining 30 megahertz will support
intelligent transportation systems. They specifically take issue
with the fact that the FCC said the remaining 30 megahertz was
sufficient to support “core” or “basic” intelligent transportation
systems. Id. ¶ 35. They say that the FCC’s labeling of “core”
or “basic” intelligent transportation systems is tantamount to
the FCC deciding which intelligent transportation systems
matter and which do not.
We agree that the FCC does not control intelligent
transportation systems. But it has a statutory duty to allocate
the spectrum to its best use. 47 U.S.C. §§ 151, 303. And
figuring out how much of the spectrum is needed to support a
particular activity is exactly what the FCC does. Sometimes
that involves analyzing the technical features of a spectrum use
to figure out what range is actually needed, as the FCC did here.
See Teledesic, 275 F.3d at 84 (the FCC “must predict the effect
and growth rate of technological newcomers on the spectrum”).
In addition, the FCC addressed the Department of
Transportation’s objections by noting that in 2017, the
Department of Transportation produced an analysis showing
that “safety applications that could eliminate a large proportion
of crashes may require” only 10 megahertz of the spectrum.
Use of the 5.850-5.925 GHz Band, 36 FCC Rcd. 1,444, ¶ 140
(citing Federal Motor Vehicle Safety Standards; V2V
Communications, 82 Fed. Reg. 3,854, 3,885, 3,969, 3,986 (Jan.
12, 2017)). So according to the Department’s past analysis,
nothing near 75 megahertz of the spectrum is necessary for
intelligent transportation systems that could greatly reduce car
accidents.
12
Moreover, the Department of Transportation’s concerns
with the FCC’s order are no longer espoused by the Executive
Branch. Instead, the Executive Branch assessed the case’s
merits and considered the federal interests. Response of the
United States 2. Then through the Department of Justice, the
Executive Branch — which of course includes the Department
of Transportation — joined the FCC’s brief defending the
FCC’s order. See Sierra Club v. Costle, 657 F.2d 298, 405
(D.C. Cir. 1981) (“The executive power under our
Constitution, after all, is not shared—it rests exclusively with
the President.”); id. at 406 (“Single mission agencies do not
always have the answers to complex regulatory problems.”).
Second, the Transportation Petitioners — as well as the
Petitioner-Intervenor Continental Automotive Systems
— argue that intelligent transportation systems need more than
30 megahertz of spectrum for yet-to-arrive technologies. But
the FCC is entitled to great deference when predicting the
likelihood of those developments. See Teledesic, 275 F.3d at
84. Here, the FCC exercised its discretion and reasonably
concluded “that the potential deployment of future . . . services
that may or may not develop years into the future are too
uncertain and remote to warrant the further reservation of
spectrum for their deployment.” Use of the 5.850-5.925 GHz
Band, 36 FCC Rcd. 1,444, ¶ 120. And with regard to the record
before the FCC, the Petitioners have directed us to no
significant developments in the field of yet-to-arrive
technologies.
Third, the Transportation Petitioners argue that the FCC
did not address a proposal from the auto industry that the FCC
should require the industry to commit to building five million
intelligent transportation devices in five years. The Petitioners
argue that this five-year plan was a reasonable alternative to
13
reducing the spectrum allocation for vehicular communications
because the commitment would have ensured that the 5.9 GHz
band was put to good use. But the five-year plan did not
address the FCC’s concern that even if intelligent
transportation systems are fully developed, they still will not
need the entire 5.9 GHz band. So the plan was not a reasonable
alternative that the FCC had to address. District Hospital
Partners, LP v. Burwell, 786 F.3d 46, 59 (D.C. Cir. 2015) (an
agency need only consider “significant and viable”
alternatives) (quoting National Shooting Sports Foundation,
Inc. v. Jones, 716 F.3d 200, 215 (D.C. Cir. 2013)).
Fourth, the Transportation Petitioners argue that, given the
FCC’s new factual findings since the 1999 rulemaking and the
regulated parties’ reliance interests, the FCC did not adequately
explain its change of policy.
We again disagree. When changing policies, an agency
must show “that the new policy is permissible under the statute,
that there are good reasons for it, and that the agency believes
it to be better.” Fox Television, 556 U.S. at 515. Here, the FCC
explained that the use of the spectrum changed greatly in the
last twenty years (specifically, demand by unlicensed devices
such as Wi-Fi routers has grown) and that intelligent
transportation systems have not developed as anticipated. Use
of the 5.850-5.925 GHz Band, 36 FCC Rcd. 1,444, ¶¶ 7, 14-25,
31, 38-39. The FCC thus reasonably determined that
“reserving the entire 5.9 GHz band for [intelligent
transportation systems] is not the most efficient or effective use
of that band” and that “changes to the band plan [the FCC]
adopted over 20 years ago are essential to maximize the use of
this valuable spectrum for the public’s greatest well-being.” Id.
¶ 27.
14
Fifth, the Transportation Petitioners argue that the FCC
failed to consider the possibility that unlicensed devices in the
lower 45 megahertz would interfere with communications in
the upper 30 megahertz. The FCC, however, addressed that
issue at length. See id. ¶ 58-94. It even put restrictions on
unlicensed devices using the lower 45 megahertz — such as
emissions limits and indoor-use-only rules — to keep those
devices from interfering with intelligent transportation systems
in the upper 30 megahertz. Id. The Transportation Petitioners
offer no reason to conclude that the FCC was arbitrary and
capricious when it determined that those restrictions allay any
interference concerns. Mobile Relay Associates v. FCC, 457
F.3d 1, 8 (D.C. Cir. 2006) (“We uphold the Commission if it
makes a technical judgment that is supported with even a
modicum of reasoned analysis, absent highly persuasive
evidence to the contrary.” (cleaned up)).
C
The FCC’s order did not unlawfully revoke or
fundamentally change existing licenses to use the 5.9 GHz
band.
The FCC may modify the licenses it issues when such
modifications “promote the public interest.” 47 U.S.C.
§ 316(a)(1). That said, Section 312 of the Communications Act
forbids the FCC from “revoking” FCC-issued licenses outside
limited circumstances that are not present here, and Section 316
does not permit the FCC to “fundamentally” modify licenses.
See 47 U.S.C. §§ 312, 316; PSSI Global Services, 983 F.3d at
7. But a license is not revoked or fundamentally modified as
long as the licensee can “provide essentially the same services”
after the change, even if those services require new technology.
PSSI Global Services, 983 F.3d at 8 (quoting Community
Television, Inc. v. FCC, 216 F.3d 1133, 1141 (D.C. Cir. 2000));
15
id. at 9 (“Unless it harms the services ultimately provided, the
need to make such technological adjustments does not impose
any impermissibly fundamental change.”). And “a reduction
in spectrum that leaves licensees with enough capacity to meet
current and future needs does not remotely constitute a
revocation.” Id. at 9.
As the FCC explained in its order, that’s the case here. The
FCC left the Transportation Petitioners with 30 megahertz of
the spectrum in which to use their licenses. And it reasonably
determined that that reallocation “will not meaningfully
interfere with the ability of incumbents to provide the same
types of safety-related services that they are currently
offering.” Use of the 5.850-5.925 GHz Band, 36 FCC Rcd.
1444, ¶ 118. Nor will it disrupt any reasonably foreseeable
“concrete business plans” of licensees because licensees can
shift their communications to the remaining 30 megahertz. Id.
¶ 120.
The Transportation Petitioners argue that the upper 30
megahertz is not in fact sufficient to support their intelligent
transportation systems. But we’ve already explained at length
that the FCC reasonably disagreed with the Transportation
Petitioners on that front. Supra Section II.B.
* * *
We dismiss the appeal and deny the petitions for review.
So ordered.