New bills would force the FCC to examine, on an expedited basis, possible Wi-Fi and other unlicensed use of 5.9 GHz band.

As a general rule, the FCC is in the driver’s seat when it comes to spectrum management in the U.S. But that doesn’t mean that Congress can’t, and won’t, occasionally engage in some aggressive backseat driving. And so it is that several members of Congress have reintroduced legislation – S.424 in the Senate, H.R.821 in the House – strongly suggesting the direction the FCC should take with respect to the 5.9 GHz band (i.e., 5850-5925 MHz). The bills would require the FCC to “provide additional unlicensed spectrum in the [5.9 GHz band] under technical rules suitable for the widespread commercial development of unlicensed operations in the band”, provided that the Commission first determines that such use won’t cause harmful interference to existing licensees of that band. The bills also provide detailed specifications, and an accelerated timetable, governing how the FCC must make that determination.

If this sounds familiar, that’s probably because an essentially identical proposal was introduced last year. No action was taken on it then, so it’s been reintroduced.

Under the detailed schedule set out in the bills, the FCC would have to:

  • solicit comments on proposals for “interference-mitigation” techniques and technologies (including potential rechannelization) that could permit the band to accommodate both existing users and “widespread commercial unlicensed operations”. For purposes of the bills, that latter term – which in recent years has been legislative shorthand for “Wi-Fi” – would include outdoor operations with at least one watt of transmitter output power, but would not require use of Dynamic Frequency Selection (i.e., the process in which the device automatically looks for, and then transmits on, available channels);
  • develop and implement a test plan for Wi-Fi use of the 5.9 GHz band. This would be done in cooperation with the National Telecommunications and Information Administration (NTIA) and the Department of Transportation (DOT). The bills helpfully provide a list of eight specific considerations that the FCC would have to address in this test process; and
  • based on the test results, adopt rules “suitable for the widespread commercial deployment” of Wi-Fi in the 5.9 GHz band (if the tests establish that such rules could be crafted so as not to cause interference to existing licensees in the band).

The bills lay out specific – and fast – time frames for each of these steps. The Commission would have to: invite preliminary comments within three months of the statute’s enactment; complete the test plan within six months of enactment; wrap up the tests within 15 months; and then adopt appropriate rules in light of the test results within 18 months of enactment.

The proposal, if adopted, would put Congress at odds with the automotive industry, which for more than a decade has been working to develop smart car technology (sometimes referred to broadly as Intelligent Transport). That technology would use the same 5.9 GHz spectrum band for “dedicated short range communications service” (DSRC), allowing cars to communicate wirelessly to prevent accidents. The auto industry and the DOT have been attempting to develop standards for vehicle-to-vehicle (V2V), or connected cars, technology. During the past few years, the DOT has been involved in demonstration projects to test V2V systems. Since it hasn’t yet adopted any regulations governing the commercial use of this technology, it’s safe to say that actual deployment will not be coming to your car anytime soon.

Intelligent Transport proponents are concerned that shared use of the 5.9 GHz band – particularly with Wi-Fi operations – could reduce the effectiveness of V2V operations. The notion of such sharing has been percolating at the FCC for at least a couple of years. The automotive industry, with DOT’s political support, has been fighting the idea of sharing the band with other potential users, including Wi-Fi, whom they view as a threat to V2V operations.

In contrast, Commissioners Michael O’Rielly and Jessica Rosenworcel recently put out an FCC blog post advocating for band-sharing between the two uses. As they see it, the safety considerations underlying V2V/DSRC operations should continue to be permitted and protected. But during the 15 years since such operations were first accorded their own spectrum, the DSRC has developed “slowly” while the demand for Wi-Fi and other unlicensed devices has “exploded”. Accordingly, Rosenworcel and O’Rielly are ready for “a compromise that allows both unlicensed and DSRC use” in the 5.9 GHz band.

Senators Rubio and Booker are sponsoring S.424 in the Senate, while Representatives Eshoo, Matsui and Latta are sponsoring H.R.821 in the House. These are not political unknowns, which ordinarily might mean that their legislation should get some consideration in Congress – although last year’s unsuccessful bills had the same sponsors. But even if this year’s model of the Wi-Fi Innovation Act, like its predecessor, fails to make it to the finish line, the fact that Rosenworcel and O’Rielly appear to be in agreement is, in and of itself, a noteworthy development. The votes in a number of recent high-profile Commission decisions have broken down along strict party lines. But since Rosenworcel is a Democrat and O’Rielly is a Republican, their common openness to the notion of some compromise that would give Wi-Fi access to the 5.9 GHz band suggests that there is likely no political roadblock at the FCC.