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THE VIEW Legal Brief


Bob Kelly & Mark Johnson 5.9 GHz stakeholders make their case to the FCC


Robert Kelly is a partner and Mark Johnson is an attorney at law at the Washington, DC-based law firm


Squire, Sanders & Dempsey, LLP. robert.kelly@squiresanders.com; mark.johnson@squiresanders.com. For more information on this and other legal issues, please follow us on Twitter at @globalcomlaw


I


n our March 2013 column, we discussed two significant developments: (1) the January


2013 release of the US Department of Commerce’s National Telecommunications and Information Administration (NTIA) study that identified four “risk factors” to DSRC from unlicensed operations; and (2) the February 2013 release of the Federal Communications Commission’s (FCC) Notice of Proposed Rulemaking (NPRM) that specifically proposed to open the DSRC band to unlicensed users. Public comments on the FCC’s NPRM were submitted in June and July 2013. Over 60 different entities and


individuals submitted initial and/or reply comments to the FCC addressing the proposal to permit unlicensed operations in the 5.9GHz band. Te comments represent the key stakeholder groups: vehicle original equipment manufacturers (vehicle OEMs) and Tier-1 suppliers, device makers for both DSRC and Wi-Fi radio equipment, US Department of Transportation, State Departments of Transportation, the National Transportation Safety Board, standards-setting organizations, cable TV companies, vehicle and other industry trade organizations, and wireless and satellite service providers. Leaders of a Congressional subcommittee and individual representatives submitted letters to the FCC on the issue as well. DSRC supporters stressed several


key points in their comments. DSRC will provide significant public safety


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benefits to the traveling public. According to US DOT, the National Highway Traffic Safety Administration (NHTSA) has stated that vehicle-to- vehicle (V2V) communications “could potentially address about 80 per cent of crashes involving non-impaired drivers once the vehicle fleet is equipped” with this technology. US DOT estimates that it has invested some US$450m to support DSRC research, testing and demonstrations over the past 10 years, and vehicle OEMs estimate that they have spent some US$130m on DSRC since 2005. Tese and other efforts have DSRC poised for nationwide deployment, while early deployments are already occurring. However, the DSRC proponents argue that the FCC’s rulemaking risks impeding DSRC deployment, in particular the expected regulatory decision by NHTSA in late 2013 that could mandate the technology for light vehicles.


A STUDY IN FEASIBILITY Tere is near unanimity among DSRC supporters that, given the expected public safety benefits, DSRC must be protected from harmful interference in any FCC decision to permit unlicensed operations in the 5.9GHz. Multiple commenters request that the FCC allow sufficient time for NTIA to carry out its proposed two-year “quantitative evaluation” – until the end of 2014 – to determine the feasibility of introducing unlicensed devices into the proposed 5GHz bands. Finally, DSRC advocates stress that


there is no consensus among proponents of spectrum sharing as to how such


thinkinghighways.com


sharing can be accomplished and how DSRC can be adequately protected. Tere are also several commenters,





Spectrum sharing,


according to Qualcomm, will only work if it “can be proven to work


successfully on non-


interfering basis” with DSRC





such as Cisco and Qualcomm, whose submissions seek to balance the interests of DSRC and unlicensed users. Both companies manufacture DSRC and Wi-Fi radio devices, are active participants in the DSRC community and recognize the critical public safety benefits associated with the technology. Cisco notes that the protection of DSRC operations were not contemplated when the FCC established the current rules for unlicensed devices, and advocates a “substantial amount” of testing to avoid interference to DSRC from unlicensed devices. Qualcomm states that if the FCC


were to “simply order” sharing between DSRC and unlicensed devices in the 5.9GHz band, it would put at risk national DSRC deployment. Spectrum sharing, according to Qualcomm, will only work if it “can be proven to work successfully on non-interfering basis” with DSRC. Qualcomm therefore proposes to segment the 5.9GHz band, giving DSRC the upper 20 or 30MHz of the band and possibly permitting sharing in the remainder with “priority” transmission mechanisms for DSRC.


INSUFFICIENT SPECTRUM Comments from Cablevision, Comcast and Time Warner, as well as several cable industry associations, stress the need for additional spectrum at 5GHz, including the 75MHz in the 5.9GHz Band, to provide unlicensed services as current spectrum is not sufficient to meet near-term demand. In addition, this additional spectrum is needed to enable new “gigabit” Wi-Fi services, which use channels as large as 80 or


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