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Federal Register / Vol. 86, No. 83 / Monday, May 3, 2021 / Rules and Regulations
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condition CV2X operations on complying with specific technical rules e.g., power and OOBE limits consistent with current DSRC-based rules, and the requirement that these operations must comply with any final rules that the Commission adopts for CV2X
operations. The Commission directed the WTB and the Public Safety and Homeland Security Bureau PSHSB to issue a public notice within 30 days of the effective date of the First Report and Order to establish and provide further clarity on a streamlined waiver process for providing ITS licensees authority to operate RSUs with CV2X-based technology in the 5.8955.925 GHz band in the near term. Because OBUs are licensed by rule under part 95 of the Commissions rules, manufacturers will need waivers to obtain equipment certification of CV2X-based OBUs as well as a waiver to permit such device operation prior to the Commission adopting final rules for CV2X-based OBUs. The Commission encouraged parties interested in pursuing development, installation, and use of CV2X-based OBUs in advance of final rules to discuss their equipment with the WTB, the PSHSB, and the Office of Engineering and Technology to determine the appropriate course of action to enable the expeditious roll-out of these devices on vehicles in a manner that is consistent with existing technical rules and that will not cause harmful interference to DSRC-based operations that have not yet transitioned to CV2X
operations.
32. Protecting Federal Operations.
The Commission agreed with NTIAs recommendation that sharing between ITS and Government operations in the 5.8955.925 GHz band is possible if proper coordination of RSUs is performed, and thus adopted NTIAs recommendation. Coordination of OBUs is not needed.
D. Statutory Considerations 33. Relocating DSRC to the upper 30
megahertz. Under its authority under sections 301, 309, and 316 of the Communications Act, the Commission decided to modify all existing ITS
licenses to specify the 5.8955.925 GHz portion of the 5.9 GHz band for ITS
operations following the one-year transition period. Under the terms of the modified licenses, the authority to operate in the lower 45 megahertz will expire at the end of this one-year period.
As per 47 U.S.C. 316, the Commission provided for a 30-day protest period before these modifications can become final. The Commission found that these modifications were consistent with its statutory authority, supported by
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judicial and Commission precedent, and would serve the public interest, convenience, and necessity.
34. The Commission found that relocating DSRC operations to the upper 30 megahertz of the 5.9 GHz band was within the Commissions authority under section 316 of the Communications Act. Section 316 gives the Commission authority to modify, by rulemaking or adjudications, any license either for a limited time or for the duration of the term thereof, if in the judgment of the Commission such action would promote the public interest, convenience, and necessity.
Courts have held that the Commissions authority to modify licenses under section 316 does not confer on the Commission the ability to affect a fundamental change to those licenses.
This means that the Commission can permissibly exercise its authority under section 316 if 1 it finds that doing so serves the public interest and 2 the modification is not so sweeping as to amount to fundamental change to the licenses being modified.
35. The Commission found that this modification is manifestly in the public interest because the modification will make room for valuable new unlicensed uses in the lower 45 megahertz of the band, while providing existing DSRC
licensees sufficient spectrum to provide substantially the same basic vehicular safety services they now provide. This modification is therefore consistent with the long line of Commission actions changing or reducing frequencies where it has found doing so in the public interest.
36. The Commission also found that the record supported its conclusion that relocating DSRC licensees to the upper 30 megahertz of the band will not meaningfully interfere with the ability of incumbents to provide the same types of safety-related services that they are currently offering. The Commission concluded that the 30 megahertz would accommodate basic ITS services for not only the limited number of vehicles currently equipped with DSRC as currently allowed for under the Commissions rules e.g., certain fleet vehicles, which are mostly involved in pilot projects but also for additional commercial vehicles e.g., fleet vehicles, trucks, cars that might incorporate DSRC-based equipment and that could become available for American consumers on a wider basis across the country in the futurenotwithstanding current trends by many manufacturers for introduction of the new CV2X
technology.
37. Further, the Commission concluded that the transition path it was
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adopting in the First Report and Order was designed to accommodate a transition that minimizes any potential disruption to DSRC operations because it is technically feasible for ITS to operate on 30 megahertz in the upper part of the band by reconfiguring DSRCbased devices by updating firmware and/or software. The Commission did not require existing licensees to vacate use of channels in the lower 45megahertz immediately; instead it gave incumbent licensees one year to develop and implement a transition path out of that portion of the 5.9 GHz band. The Commission found that these accommodations were particularly reasonable in light of the minimal current deployment of DSRC.
38. At bottom, the argument that the Commissions action amounts to a fundamental change rests on the assertion that it will upend the future plans of DSRC licensees to provide certain advanced ITS services, which some commenters argue require the use of the full 75 megahertz currently allocated to DSRC licensees. But the recordincluding the history, current deployment of basic safety-related DSRC-based ITS services, and status of future plans for these advanced servicesis unconvincing that relocation to the upper 30 megahertz will upend any concrete business plans of DSRC licensees. As the D.C. Circuit explained in detail in Teledesic LLC v.
Federal Communications Commission 275 F.3d at 84, in managing spectrum the Commission correctly conceives of its role in prophetic and managerial termsit 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 . . .
new technologies. In making this determination, the Commission concluded that the potential deployment of future advanced DSRCbased ITS services that may or may not develop years into the future is too uncertain and remote to warrant the further reservation of spectrum for their deployment. After 20 years, with no widescale deployment of even the basic vehicle safety applications that have been available for years, the Commission cannot reasonably justify the protection of such possible future deployment of advanced ITS service at the expense of proven and market-ready technologies that stand ready to make use of the lower 45 megahertz.
39. Transition to CV2X. The Commission determined that it has the authority under Title III of the Communications Act to transition operations in the upper 30 megahertz
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