With the advent of mobile devices, ubiquitous home laptop, tablet and iPad computers, content streaming and more, the need for wireless service is forever on the rise in the United States. Industry experts note that capacity limits are being stretched. With the arrival of the "Internet of Things," linking the internet with everything from nanny cams to home/office climate systems to autonomous vehicles, is there a clear and coherent path forward on the assignment or repurposing of spectrum? Perhaps as importantly, who has the authority and expertise to decide?
Dean Brenner, Senior Vice President, Spectrum Strategy & Technology Policy at Qualcomm
Hilary Cain, Director (Group Manager), Technology and Innovation Policy, Toyota North America
Danielle Piñeres, Vice President & Associate General Counsel, NCTA- The Internet & Television Association
Moderator: Prof. Christopher J. Walker, Professor of Law, The Ohio State University Moritz College of Law
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Operator: Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Administrative Law & Regulation Practice Group and Telecommunications & Electronic Media Practice Group and Regulatory Transparency Project, was recorded on Thursday, October 10, 2019, during a live teleforum conference call held exclusively for Federalist Society members.
Micah Wallen: Welcome to The Federalist Society’s teleforum conference call. This afternoon’s topic is titled “Spectrum Wars.” My name is Micah Wallen, and I’m the Assistant Director of Practice Groups at The Federalist Society.
As always, please note that all expressions of opinion are those of the experts on today’s call.
Today, we are fortunate to have with us our moderator, Professor Christopher Walker, who is Professor of Law at the Ohio State University Moritz College of Law. Professor Walker will be introducing our panel today. After our panel gives their opening remarks, we will then go to audience Q&A. Thank you all for sharing with us today. Professor, the floor is yours.
Prof. Christopher J. Walker: Great. Thanks so much. We’ve got a really exciting panel today talking about Spectrum Wars at the FCC. And in particular, we’re going to focus on the 5.9 gigahertz spectrum that’s been at issue lately in the news and before the FCC. And I’ve got this great panel. I’m going to introduce them as they go through their openings. And we’re going to start first with Danielle Pineres, who is the Vice President and Associate General Counsel at the NCTA. That’s the Internet and Television Association.
There, she focuses on wireless spectrum policy issues that affect the cable industry, including spectrum for services like WIFI. She’s a graduate of Georgetown University Law Center. She previously practiced in D.C. at a law firm in the areas of telecommunications and technology law. So Danielle’s going to give us just a kind of brief introduction to the topic and then kind of outline some of her thoughts on the path going forward.
Danielle Pineres: Great. Thanks, Chris, and thanks everybody for joining today. The FCC is considering a question that’s really tailor-made for this audience. Should the FCC use its regulatory power to continue to reserve wireless spectrum for one specific technology without an auction or sharing, or should it open a band to market forces by removing technology specific regulations? This is a critical question because wireless spectrum is a scarce and valuable national resource.
So regulatory strategy matters. There’s no more open greenfield spectrum out there just waiting for an allocation. And everyone, from private industry to DOD, is working hard to squeeze maximum utility out of every last megahertz of spectrum. They’re consolidating operations, moving operations, and finding new ways to share. And as we try to get more utility out of spectrum, will we rely on the government’s 20-year-old guesses about the future of spectrum or on market forces?
We tried this “government knows best” approach in the 5.9 band, and the result is that there’s 75 megahertz of prime mid-band spectrum sitting out there virtually unused today. You won’t be surprised about how this happened. In 1999, the FCC adopted regulations reserving the band for one single technology: dedicated short range communication systems or, as you’ll probably hear folks call it on this call, DSRC. DSRC is a technology that allows cars to use radios to communicate with each other and with roadside infrastructure. And the idea is for cars equipped with DSRC to share speeds, vision, heading data with each other so, if a crash situation is eminent, drivers will be warned and could take action.
After 20 years, we really haven’t seen this technology deploy beyond subsidized pilot projects. DSRC users got exclusive access to this 5.9 band for free, without an auction like we see for LTE or a requirement to share with other users like we see for WIFI, all based on auto industry promises that DSRC would deploy. So the last gasp of command and control regulation at the Commission, where the FCC sort of picked technology winners and losers in particular bands, but despite the free spectrum grants and decades of government subsidized research and pilot deployments, DSRC technology has just failed in the commercial marketplace. And it’s the perfect case study proving that regulatory overreach leads to less efficient outcomes compared to market forces. It’s time to stop subsidizing that failed technology in our view, with free spectrum, and time to put this virtually empty band to use.
Now, you might hear on today’s panel that stopping the spectrum subsidy for DSRC could undermine safety. But if you look closely, you’ll see that in the 20 years since 1999, a lot has changed in both the automotive and in the wireless broadband space. In the automotive side, companies have developed radar, lidar, sensors, and cameras. You’re familiar with these technologies. They enable automatic braking and lane departure warnings, things that are in vehicles today and could help to enable fully automated vehicles tomorrow. These are vehicle resident technologies that don’t rely on every other car in the fleet being similarly equipped in order to work. And they’ve emerged from the marketplace rather than from regulation.
They’re also promising new technologies, like cellular read access. You’ll hear my colleague, Dean Brenner, talk about that technology. And C-V2X would like to access the 5.9 band as well, but they can’t under the current rules that only allow DSRC. Reserving a band for particular technologies locks in place the failed approach and undermines all new and better ideas. And we think that’s likely to undermine safety rather than advance it.
On the wireless broadband side, the FCC found during these 20 years that it works to reduce regulation and just set basic technical rules. That approach in unlicensed spectrum bands gives companies the freedom to innovate. The result of this was WIFI, which has gone from an experiment in spectrum to a core communications technology relied on in homes, businesses, factories, airports, and hospitals across the globe. More than half of U.S. internet traffic transists a WIFI network, and it’s certainly how most cable broadband subscribers experience the internet. WIFI is also critical to our economy.
One study found that unlicensed technologies like WIFI contributed more than $525 billion to the U.S. economy in 2018 and are poised to contribute more than $830 billion by 2020. But the tremendous growth in WIFI use and the advent of faster and better generations of WIFI that rely on very wide channels require access to more mid-band spectrum. The 5.9 band is well-positioned to meet that need, and we think we could do it without undermining safety. This band is right next to the most widely used WIFI band in the world.
And that means two things. Number one, American consumers could, for the first time, have access to a commercially viable gigabyte WIFI channel of 160 megahertz. And number two, the band could be brought online almost immediately through a software or firmware update to many devices out there today. Because the band is so dramatically underused and because of the tremendous need for more WIFI spectrum, we’ve asked the FCC to move forward with a notice of proposed rulemaking, asking how it can best enable robust and efficient use of these frequencies. Because whether you’re a WIFI proponent, a fan of enabling next generation automotive technologies like C-V2X or just someone who hates to see a resource wasted by government inaction, the current stasis in the band serves no one, and we think it’s time for the FCC to resolve this dilemma.
Prof. Christopher J. Walker: Great. So we’ve got one position on the board now, and we’re going to turn to, I’m guessing, a very different position from Hilary Cain, who is the Director of Technology and Innovation Policy at Toyota. In this role, she’s lead the company’s policy development government affairs engagement on policy. She’s related to connected and automated vehicles, so she’s the perfect person to be talking about how the DSRC—what it’s currently—what the 5.9 gigahertz spectrum is currently reserved for, the importance of that. Hilary, prior to joining Toyota, spent 10 years working in the U.S. House of Representatives, primarily on technology policy matters. So Hilary, do you want to give us a little bit of an opening and probably a little bit of a response to Danielle, as well?
Hilary Cain: Yeah. Thank you so much for having me, and Danielle, thanks for your comments. So the issue here is that we have a traffic fatality epidemic in this country. Far too many people are dying on our roadways. Last year alone, we were looking at nearly 37,000 people who died, which is, if you think about that, essentially equivalent to two jumbo jets full of Americans falling out of the sky each week. And as far as I’m concerned and as far as folks at Toyota are concerned, that’s simply unacceptable and something that we should all be committed to doing something about.
Vehicle-to-vehicle and vehicle-to-infrastructure communication, we believe, has the potential to make a significant dent in traffic fatalities. The U.S. Department of Transportation, which is, as you all know, the federal agency charged with advancing motor vehicle safety in this country, has determined that this technology has the ability to mitigate the severity of up to 80 percent of non-impaired crashes, which is simply amazing. So the good news is that technology to achieve this outcome has been developed and tested and validated. But unfortunately, efforts to deploy the technology have been stimmed by a plague of regulatory uncertainty over the last six and a half years.
So companies like Toyota and state departments of transportation across the country have been stuck in limbo when it comes to product planning and deployment strategies by not knowing whether they will continue to have access to the 5.9 gigahertz spectrum for this technology. As you mentioned, I’ve worked in this town for a long time. And to be frank, I personally found this issue to be the most frustrating issue I’ve ever worked on in my 17-year career. The amount of disinformation and misinformation that’s out there has been simply staggering.
Rather than having an honest debate about the best use of the 5.9 gigahertz spectrum for the American public, we found ourselves, both at Toyota and within the auto industry, having to defend against a tax on the efficacy or validity of a proven auto technology that can save lives. And in my opinion, creating doubt or questions in the minds of consumers on a technology that is already in the market today and performing as expected is irresponsible. And I hope we can avoid that in today’s conversation.
So as for the best use of the spectrum, we continue to believe that the entire 5.9 gigahertz spectrum band should be preserved for auto safety technology, and we’re far from alone in that. In fact, the auto safety community is united in that position. The National Safety Council, Mothers Against Drunk Driving, AAA, the American Highway Users’ Alliance, the International Association of Fire Chiefs, the International Association of Chiefs of Police, the National Sheriffs Association, the National Association of State EMS Officials, the U.S. Department of Transportation, 52 state department of transportations, automakers and auto suppliers have all weighed in with the FCC and strongly urge them to preserve the entire 5.9 gigahertz band for auto safety technology. So there is no question that those who have a long standing and unwavering commitment to reducing traffic fatalities believe in this technology and wan to see its benefits realized at scale.
At Toyota, we also continue to believe in dedicated shortrange communication as a proven and validated technology for eminent crash avoidance. Because of our paramount interest in using vehicle-to-vehicle and vehicle-to-infrastructure communication for collision avoidance applications, we are also very passionate about ensuring the interoperability and backwards compatibility of all crash avoidance communications within the 5.9 gigahertz band. What is true is that the auto safety community needs regulatory certainty to move forward. Every day, every week, every month, every year that is spent debating the merits of vehicle-to-vehicle and vehicle-to-infrastructure communication and whether the 5.9 gigahertz band should be repurposed means a further delay in bringing live saving technology to the U.S. market at a mass scale. Thanks so much.
Prof. Christopher J. Walker: Thanks, Hilary. Could you just real briefly -- for those of us who aren’t following this as closely as you all are, just briefly explain a little bit like what this technology would look like if it’s fully implemented, just the layman’s view of what DSRC would do?
Hilary Cain: Yeah. I think Danielle actually laid it out quite correctly. The idea is that eventually each vehicle on the road would be sharing basic situational information with other vehicles around it, mainly for the purpose of crash avoidance. What I do think is not correct in what Danielle said is I think often folks think that dedicated short range communication, or vehicle-to-vehicle or vehicle-to-infrastructure more broadly, is limited to that sort of basic safety message based vehicle-to-vehicle communication. And instead, there are applications that have been developed, are being developed, and are part of the industry consensus band plan, a channelization plan for the band, that would also include vehicle-to-infrastructure communication, so cars talking to roadside infrastructure, roadside infrastructure communicating with cars, also vehicle communicating with pedestrians or other what are called vulnerable road users.
So it could be folks working in construction zones. It could be first responders. So there are all sorts of ways that cars could be communicating with other things that are out there that they could crash into, if that makes sense.
Prof. Christopher J. Walker: No, that’s perfect. That’s very helpful. So our third panelist is Dean Brenner, who’s the Senior Vice President of Spectrum Strategy and Tech Policy for Qualcomm. He’s worked there since 2003. Qualcomm is the world’s leading supplier of chips for wireless devices, including smartphones, tablets, and even cars, and one of the world’s leading developers for new wireless technologies. So I think Dean’s going to give us a little bit even different perspective than Danielle and Hilary on what we should be doing with the 5.9 gigahertz spectrum.
Dean Brenner: Thanks very much, Chris, and thanks to The Federalist Society. So I’ll be advocating a third way here. And because there are elements of what both Danielle and Hilary each said, which we agree with, but there’s really a third way. So on the one hand, the modern approach of a 21st century FCC or any 21st century communications regulator around the world would absolutely not be to avoid picking a technology and would be to let the marketplace decide. That’s on the one hand.
On the other hand, the whole reason we have an FCC, dating back to the Communications Act of 1934 and even the Federal Radio Commission back in 1927, is to organize the spectrum to avoid harmful interference. So it is not unusual that the FCC would take actions to ensure the absence of harmful interference, and that sometimes entails what we would advocate for here, which was part of what Hilary was talking about, which is to ensure that noncompatible uses of spectrum wouldn’t be allowed. But on the other hand, they would do that in the 21st century absolutely without picking a technology or mandating a technology.
So let me back up because, like Hilary and Danielle, I’ve been working on this particular band of spectrum for quite a long time. So there really are two game changers in terms of technology and regulatory approach for this spectrum. The first game changer was the invention by Qualcomm and others of this technology that we refer to as C-V2X, cellular vehicle-to-everything. Now, cellular vehicle-to-everything uses initially 4G and then, ultimately, 5G to do all the same things that Hilary was talking about for DSRC and then some because it also -- the 5G version of C-V2X entails the ability of autonomous cars to communicate with one another. The 4G version entails on the basic communication between cars with drivers and also between cars with drivers and infrastructure and vice versa.
So why did Qualcomm invent that technology? We’ve had DSRC since 1999 when the FCC originally allocated the spectrum. We did that because it performs better in doing all the things that Hilary was talking about. And we don’t have to have a fight about that. You don’t have to take my word for it. We’ve filed extensive test results at the FCC and at the DOT. Toyota and others on the DSRC side, as you can imagine, have their own responses to that. But basically, our contention, which we’ve shown in the test results, is, not unlike the reason that cellular technology writ large performs better than WIFI, is greater range and greater reliability. So the ability of a car to communicate with other cars at night during a rainstorm, during a hailstorm, around a curve, down a dark alley, that is where having the cellular technology in particular is going to be important as compared to DSRC.
Qualcomm was involved in DSRC. If we thought DSRC was the best we could do, we never would have invented C-V2X. We invented it with the precept that it would have to be better, and not just a little bit better, a lot better. So that’s one game changer. But again, the FCC allocated the spectrum in 1999. They couldn’t have foreseen the advent of C-V2X. So at the tail end of the Bill Clinton/Bill Kennard FCC, did something that, again, is highly unusual in modern FCC decisions by not only allocating the spectrum for intelligent transportation service but by picking the DSRC technology. But no fault there. They did that because, at the time, that was the only existent technology. DSRC is a variant of WIFI. It’s based on the earliest form of WIFI, 802.11a.
So then the second game changer is the fact that there is 1,200 megahertz of spectrum, or 30 times the amount of spectrum that Danielle would like to get access to in the 5.9 band. Thirty times that is at issue in another FCC proceeding on the other side of the 5.9 gigahertz band, the 6 gigahertz band. So for the WIFI community, although it’s true what Danielle says that this spectrum is kind of strategically located for them because it’s right next to a heavily used band of spectrum that WIFI does use heavily, still, there’s 30 times the amount of spectrum available that the FCC is studying making available for WIFI and other unlicensed applications.
So to Qualcomm -- and remember, Qualcomm, we make chips for WIFI. In a year, we sell approximately one billion chips for WIFI, so we have a strong vested interest in getting access to more spectrum for WIFI. We would like to get access to this 6 gigahertz band, which has 30 times the amount of spectrum. And as a new band, we can fashion rules for that to ensure the coexistence of all the various technologies.
So how does C-V2X get access to the 5.9 band given the fact that the FCC has rules that dictate that only DSRC can be deployed on it? By the way, Hilary didn’t mention this, but Hilary’s company’s position is that the DOT should mandate DSRC, either mandate that every car have it or mandate that, if a car is equipped with it, that it be activated, which is really the essence of a big government approach. And Hilary’s company wants that because of this uncertainty that Hilary cites. What I would say back to that is, Qualcomm, we deal with regulatory uncertainty at the FCC every day.
But here in the 5.9 band, there isn’t uncertainty. We look in a rulebook, and we have a set of rules. So it’s really a decision that the folks who are interested in DSRC have made not to deploy or to have these limited deployments. By the way, the deployments that they do have are limited. There have been 3,000 cars sold by General Motors, approximately, with DSRC in them. They only use 10 megahertz of spectrum. And the 10 megahertz of spectrum that they use, Qualcomm and the other companies interested in deploying C-V2X have foresworn.
The companies interested in deploying C-V2X, which is a global group of more than 100 companies -- we have two proposals in front of the FCC. The first is the FCC always has the authority to waive a rule. So under the FCC’s rules and procedures, if compliance with a rule -- if a waiver wouldn’t frustrate the purpose of the rule and is in the public interest, the FCC has authority to grant a waiver. So we’ve asked the FCC to grant a waiver of this DSRC mandate to enable C-V2X to be deployed. But the 5.9 gigahertz band we’re talking about is 75 megahertz wide. We’ve asked to allow the 4G version of C-V2X to be deployed just in the upper 20 megahertz. And it’s far away from where these 3,000 DSRC cars are operating. So it wouldn’t have any impact. We’re not asking the FCC to prohibit DSRC.
And then we have a second proposal, a more longer-term, far-reaching proposal, which would be to ask the FCC to change its rules. And when the FCC has its rulemaking process to do that, this is just one of many proposals that the FCC would typically consider. But in that proposal, we’ve also asked the FCC to allocate the middle 40 megahertz of the band for this 5G version of the technology. So I would just conclude by saying, again, there ought to be a third way which recognizes both the importance of letting free markets work, on the one hand, and, on the other hand, ensuring the absence of interference. We don’t think that the WIFI use of the band is compatible with the auto uses of the band. If we had a way to make it work, that would be one thing, but we don’t. So I’ll stop right there and say thanks again.
Prof. Christopher J. Walker: Great. So we’ve got a lot to talk about. I just want to make sure that I understand the state of the plays -- that right now the 5.9 gigahertz band is entirely exclusive to the DSRC? And yet the reason it hasn’t been fully implemented there, according to Toyota and others, is that they need more certainty? Because you’ve got, on the one hand, Danielle saying we should open this up to WIFI and kind of unlicensed other -- let other people explore it. And then we’ve got Dean and the cellular vehicle-to-everything technology that wants the top 20 gigahertz -- I’m sorry -- megahertz of it, and maybe even the middle 40 if it goes into 5G. So we’ve got some debate and different proposals of how to move forward with this. I guess, Hilary, I’ll just let you kind of first -- do you have anything you kind of want to respond or add to in light of what Dean said?
Hilary Cain: Yeah. I guess just a couple of things, and thanks, Dean, for your comments. I think one of the things that I’ll mention is Dean had hinted at our position around a government mandate. And it is true that, back at the end of the Obama administration when that administration was considering moving forward with a mandate of DSRC technology, that we were in favor of it. We remain in favor of interoperability and backwards compatibility. And how we achieve that could be done through a mandate or could be done through voluntary industry agreement.
But our biggest concern is, again, since our strong interest is in crash avoidance applications, the reality is we will not see crash avoidance benefits if Toyota cars are speaking a different language than Ford cars and they can’t understand each other. So our interest is in ensuring that, going forward, we have certainty that vehicles are all speaking the same language or at least speaking languages that other cars can understand and communicate with. So I guess I’ll just stop there because I want everyone else to be able to speak, but I just wanted to clarify -- I guess I’ll say one more thing.
As a company, we’re not anti-C-V2X. We’re not against continued innovation in the band. Our concern, to date, in addition to interoperability, has just been that, again, from a crash avoidance, collision avoidance perspective, we don’t think C-V2X has been proven and validated at the scale that it would need to be proven and validated for us to feel comfortable putting it into our cars. We think it’s about where DSRC was about ten years ago in terms of its development. So it may eventually prove itself out as a viable alternative to DSRC. It’s just not one that we would feel comfortable yet putting into our products in the U.S. market at this juncture.
Prof. Christopher J. Walker: Hilary, one follow up I’d ask on that: are these mutually exclusive when it comes to the 5.9 gigahertz band, or could they both coexist on it? Is there still enough room there for DSRC?
Hilary Cain: Yeah. So DSRC and C-V2X cannot communicate with each other.
Prof. Christopher J. Walker: If Dean’s proposal were to go through, let’s just start with the waiver and the top 20 megahertz. Is that something that would -- from my understanding is the WIFI -- Danielle’s approach would really complicate the DSRC implementation on this band. But would Dean’s also complicate that, or is it just a matter that they’re not compatible and they wouldn’t talk to each other?
Hilary Cain: That is our biggest concern is that the crash avoidance benefits would be diminished if we have a fragmented marketplace of non-interoperable communication technologies.
Prof. Christopher J. Walker: Danielle, do you want to kind of add anything else and respond to other points?
Danielle Pineres: Yeah. Just a couple things. On that last point that you raised about would this be -- would putting WIFI on the band be disruptive, there are quite a few proposals on the table, actually, for how to enable WIFI communications in the band while still enabling automotive safety. One possibility would be, since DSRC is not widely deployed and cellular-V2X still hasn’t really entered the marketplace, now is a good time to look and take a sort of holistic view of spectrum policy and say, “Is 5.9 the right place for automotive safety communications any more, or should we be looking at other spectrum bands where there might be kind of better synergies for these new communications technologies and old communications technologies?”
The other possibility would be to do sort of a band split where WIFI could operate in the lower 45 megahertz of the band, which would bring online one of these 160 megahertz channels that are so critical for our industry, while still enabling ITS -- intelligent transportation systems communications in the upper three megahertz. So there are certainly proposals on the record at the Commission for how to kind of have our cake and eat it too in terms of both having automotive safety technologies -- granting them a viable path forward while still enabling WIFI in the band.
In terms of the regulatory certainty point that Hilary’s been raising, certainly, there’s potentially I guess been some regulatory uncertainty associated with the Commission proceeding that’s been ongoing now for six years. But I would point out that DSRC had access to the band for 15 years before that. So certainly we hadn’t seen deployment, even though there was plenty of certainty prior to the FCC’s existing proceeding. So I don’t know if having certainty again would still enable deployment.
I think the other issue is that some of the regulatory uncertainty here seems to be that the Department of Transportation has stepped in to say, “Hey, FCC, we’d be grateful if you would not move forward on this yet.” And there’s been press reports about sort of a hold up to the FCC moving forward here, just simply to ask questions about how to best make use of this spectrum. So I think if we want regulatory certainty and to resolve the FCC’s ongoing proceeding, the right way to do that is to move forward with an FNPRM where everybody can have this debate we’re having today but on a larger scale and put in their comments for the FCC’s consideration.
I also wanted to respond briefly to Dean’s point about the other potential unlicensed spectrum that’s out there for FCC consideration. In that regard, it’s important to understand that the Commission has not designated a new unlicensed spectrum band that’s suitable for WIFI since before the iPhone was introduced. It’s been a decade since the FCC did new mid-band spectrum for unlicensed. And in that time, WIFI has become this core communications technology.
So I think we sort of need an all-of-the-above approach to WIFI spectrum in order both to support growing demand in these bands that are becoming congested but also to enable the next generation of WIFI innovations. And that’s not just WIFI 6, the next standard that is sort of poised to be deployed, but also these unlicensed spectrum bands are playgrounds for innovation because of the low barriers to entry and low regulatory approach. So if we want to see that next unlicensed innovation like WIFI that could change the world, I think we’re going to need kind of all of the unlicensed spectrum that the FCC can find up and down the dial.
The 6 gigahertz band that Dean mentioned is also a little bit different from 5.9 in a couple of important ways. That spectrum is heavily utilized by incumbent users today. And unlicensed devices are great at sharing, and we’re very optimistic about the possibilities for WIFI to share that other bands. But I think it may not enable quite the same uses cases that might be possible in 5.9 where there really are very few just pilot deployment projects deployed in the band today. So again, an all-of-the-above approach, two different bands, kind of two different tools in the tool kit to relieve the kind of burden of congestion in unlicensed bands and enable ongoing innovation.
One of the interesting things, also, about the kind of prime location of 5.9 is that there could be really a possibility for sort of a WIFI super band from 5.8 gigahertz up through 5.9 and then into 6 gigahertz, the spectrum that Dean mentioned. Would it really make sense any more to have sort of an island of automotive safety in the middle of what could be sort of a vast unlicensed spectrum resource? Or again, is now the right time before everyone has fully deployed on the automotive safety side to sort of take a look at what is the right spectrum policy for our country and what’s the best in the public interest? Maybe this is an unlicensed home, and maybe we find an alternative approach for automotive safety.
Prof. Christopher J. Walker: I had a somewhat unrelated question as more myself and more of an administrative law and regulatory practice generalist. I found it quite striking -- it’s not unusual but kind of the interagency interactions here are kind of fun to think about and in particular, the pretty persistent role that Department of Transportation’s played before the FCC with respect to its proceedings here. I just kind of wanted to get your thoughts on is this a good thing or is it a bad thing to have another agency pretty involved in providing feedback and helping one agency make its decision.
Danielle Pineres: This is Danielle. I’d love to take a crack at that one. I think it’s important to remember here that there are a couple of different kinds of spectrum bands. There are commercial spectrum bands, which are regulated by the FCC. And there are government spectrum bands that are regulated by NTIA, the National Telecommunications and Information Administration, which is part of the Department of Commerce. And it is not at all unusual for federal agencies who are spectrum holders of federal spectrum to engage in a process. Again, there are lots of precedents now for federal agencies sort of rethinking their use in the spectrum bands that they hold that are regulated by NTIA and shifting some of that spectrum to private sector use.
But you’re right to point out that the DOT involvement here is, I think, a little bit unusual and unique in that this 5.9 band is a commercial band. It will be used by automotive companies, maybe by state and local governments. But it is not a federal band held by DOT. Now, DOT has invested significant time and taxpayer resources into researching DSRC and funding these pilot deployments. And given DOT’s interest, I think the FCC has been sensitive to the views of a sister agency. But really, there’s no reason why the FCC couldn’t move forward on this band tomorrow with or without the DOT’s input.
Just as a general matter, I’d say it’d be a challenge for our country’s spectrum policy if other government agencies are trying to block action at the FCC on commercial spectrum bands. The FCC is the expert agency here, taxed by Congress with regulating spectrum in the public interest. And every so often, it has to take stock of where it is on spectrum policy and whether existing bands have been used efficiently and rethink those allocations. I think there’s certainly an opportunity for DOT and for the companies that it regulates to weigh in in the FCC’s process. But I think it’s problematic that this could be sort of a hold up to the FCC moving forward to regulate a commercial band.
Dean Brenner: So this is Dean. So I’ll give you a slightly different take there, which is to say that DOT stated policy as between DSRC and C-V2X, despite the call from [Inaudible 32:52], the DSRC camp for a DSRC mandate, is DOT says their technology neutral, that they don’t have a preference as between DSRC and C-V2X. And I would just say that’s great. But since C-V2X absolutely cannot get on the air without either a waiver or a change in the rules, we need FCC action to implement a policy. Otherwise, there’s this bottleneck.
Prof. Christopher J. Walker: Hilary, do you want to jump in?
Hilary Cain: Yeah. Why not? No, I think Danielle used the point that it was sort of unique that DOT was engaging, and I think it is unique. But I think it’s unique because what we’re seeing is the FCC making a decision that will have or could have a direct impact on auto safety. And as the federal agency that has authority over and responsibility for helping to improve safety on American roadways, I think it feels challenged by the fact that the Commission could make a decision that could potentially upend this auto safety technology going forward. So I do believe it’s unique. At the same time, I think it’s unique for the FCC to be making life or death decisions about auto safety technology without respecting the thoughts and opinions of its sister agency that has that at its core.
Prof. Christopher J. Walker: Great. So Hilary, my kind of next question for you is you mentioned that kind of one of the core themes of it seems like the auto manufacturer’s position is that we need more certainty that this band is going to be here for DSRC in order to kind of invest in automotive safety technology. I kind of wonder what does that look like? If you’re kind of saying what do you need, what type of more regulatory certainty would you need in order to really spur this to go forward?
Hilary Cain: Yeah. So it’s a really good question. The reality -- and Danielle had mentioned that the auto industry and other auto safety folks had had access to the spectrum for a number of years. I did want to clarify something because I think it’s important for what I’m about to say -- which is when the spectrum was first allocated in 1999, DSRC did not exist. It was an idea. So we had a blank piece of paper in front of us, and we had to figure out how to create the technology. So that technology was developed over a number of years. Standards development happened in about 2007, 2009. We then went into a public acceptance trial phase from 2010 to 2011.
And then, we went into testing and pilots and verification of the standards. And that validation of the standards culminated in a year-long pilot program that took place in Ann Arbor, Michigan with 3,000 vehicles from all different manufacturers. And that was to ensure that the technology worked as envisioned and that Ford cars were communicating with Toyota cars and Toyota cars were communicating with General Motors products and that this was all working the way it was supposed to work. That was a year-long pilot program done in conjunction with the U.S. Department of Transportation.
And the result of that was extraordinarily promising. It worked, and that was in 2013 when that wrapped up, 2013. What else happened in 2013? It’s exactly the same time that the FCC initiated its first NPRM looking at opening up the band. So right as the auto industry was ready to begin deployment, after this 3,000-vehicle pilot program final step in validation of the standards phase, is exactly when the FCC created uncertainty about whether or not we would continue to have access to the band.
One thing I’ll add, and I think this is really critical, Toyota, in 2018, April of 2018, made a very substantial product deployment announcement in the United States. So we announced that, beginning in 2021, we were going to deploy DSRC technology in our vehicles with the intent of deploying it across our entire lineup by the mid-2020s. We made this announcement in spite of the regulatory uncertainty because we were sick of sitting on our hands and waiting with what we believed was a life-saving technology. The result of that announcement was a letter to our CEO from two members of the Federal Communications Commission, who are proponents of WIFI, urging us to reconsider our product announcement, which was shocking.
So folks who have been pushing this point that we haven’t seen deployment at the same time when significant deployments were being announced were doing everything they could to make sure that those deployments were not realized. So you talk about regulatory uncertainty. I give you a snippet of some of what we’ve dealt with over the last couple of years.
Prof. Christopher J. Walker: I guess from a technology perspective, to roll this out, it would just be rolled out in new cars? Is that how that would work?
Hilary Cain: Yeah, new cars. There’s also potential for after-market devices that could be integrated into products that are already on the market.
Dean Brenner: Chris, this is Dean. The one thing I want to add to what Hilary is saying, though, is, just from a wireless industry perspective, going from 1999 to 2019, we have invented, tested and deployed all around the world into billions of cellphones and other devices the tail end of 2G, 3G, 4G, and now 5G. So just the idea that you get to have a regulatory mandate for 20 years while you go through this testing process like that -- 20-year-long process like that, that’s not what we envision for C-V2X at all.
So despite whatever this regulatory -- perceived regulatory uncertainty is, even with whatever that is, we’ve invented C-V2X. We’ve standardized it in the 3GPP global standards group. We’ve gotten it accepted by Ford, which has announced they plan to deploy it, assuming the FCC allows them to deploy it, in all their cars starting in 2022. In China, there are 13 auto makers who’ve announced they’ll be deploying it there. So in this same time period, whatever this regulatory uncertainty perception is, meanwhile, C-V2X is moving ahead at warp speed.
Hilary Cain: Yeah. I’ll just jump in, and I don’t want to get into a back and forth with Dean because I love Dean. But one thing I’ll point out is, again, we have to draw a distinction between technology that’s being used for crash avoidance and technology that’s being used for other purposes. And any time we’re dealing with a crash avoidance technology or a crash worthiness technology, we tend to look at a really long development time because we have to be 100 percent certain that it works.
And as the only auto maker on the panel, I think we have a little bit more insight into what it takes to bring an auto safety technology to the U.S. market and the level of confidence that we have to have in its performance before we can even begin to think about putting it in the hands of U.S. consumers. It’s sort of different than we’re used to in a WIFI technology sense.
Prof. Christopher J. Walker: I was kind of curious, Dean, a little bit just more on the technology on the cellular vehicle-to-everything approach. It sounds different in the sense that is each car going to have it’s own subscription? Does it also interact with phones? Clearly, the applications go beyond just automotive safety. I’m kind of just curious how that would kind of play out.
Dean Brenner: So you wouldn’t have a subscription. You wouldn’t need a subscription for the safety applications, and that’s built into the standard. And by the way, certain aspects of C-V2X we haven’t started over with. We’ve actually just imported from DSRC. So all the security and privacy aspects which have been worked on extensively through this process that Hilary has spoken about for DSRC, we’ve imported them into C-V2X. So we don’t have to start over or anything like that. So you would not need a subscription. There is the potential to have the technology in phones such that cars could communicate with pedestrians, which, as Hilary knows a lot more about it than I do, a large number of accidents in this country are between cars and pedestrians. And having the ability to have the two be able to communicate directly without having to go through a cellular network could prevent a number of those.
Prof. Christopher J. Walker: I’m just kind of curious. It sounds like the story is kind of like a beta VHS story in the sense that there are two paths, and they might be able to do similar things. But one’s going to ultimately win out. Do you think that’s a fair characterization of where we’re at when we’re thinking about DSRC versus C-V2X?
Dean Brenner: Sure. I don’t think it’s an unfair way to look at it. The only difference, again, is that DSRC was, as Hilary said, an idea on the drawing board in 1999 when the FCC allocated the spectrum and mandated DSRC. So there’s no requirement for testing or anything like that. Whereas, for C-V2X, we’ve come along later. So we’ve used a lot of the learning that’s gone on, both in the cellular industry on the wireless radio side and in the auto industry, again, to ensure that we can support all the same applications that Hilary has talked about and so we don’t have to reinvent things like security and privacy that have already been settled in the auto industry through the auto industry standards groups for DSRC.
Hilary Cain: Well, the big difference is that if you went Betamax and I went VHS, my ability to watch my video on VHS wasn’t impacted by your decision to use Betamax. But in this case, my collision avoidance system, if I go VHS, isn’t going to work with you if you’re going Betamax. So there’s a cooperative element.
Dean Brenner: Right. Only if we’re on the same channel. If we were on different channels, there wouldn’t be any impact.
Hilary Cain: I’m not sure that’s true in that, if your basic safety message is being communicated in one language and my basic safety message is being communicated in another, neither of us get the collision avoidance benefits when our two cars come into contact.
Dean Brenner: Right. I won’t be able to speak to you, and you won’t be able to speak to me. But I can speak to all the C-V2X cars, and you can speak to all the DSRC cars.
Hilary Cain: Sure. I’ll give you that.
Dean Brenner: Assuming we’re on different channels. Right. And the difference that Hilary and I have—and it’s a very fundamental, very upfront difference—is Hilary says, “Well, the FCC’s got to decide that. The FCC and DOT have to say it’s only DSRC.” Whereas, I think the market can let that play out, and the market will rationally decide which of the two will ultimately prevail.
Hilary Cain: Right. I think that’s fair. Although, we haven’t said it has to only be DSRC. We said that we want continued innovation as long as it’s interoperable and backwards compatible with DSRC.
Dean Brenner: Right. But since C-V2X isn’t, then right. Okay.
Prof. Christopher J. Walker: So I was just curious and maybe, Danielle, you can jump in and just kind of give us a sense of where exactly -- what is the state of play at the FCC right now? Where are things at and where do you think things will be going in the near future on this?
Danielle Pineres: Yeah. Sure. I’d be happy to. So the FCC, as has been alluded to -- but I don’t know if we’ve kind of said it explicitly. The FCC opened a proceeding on the 5 gigahertz band, a couple of different issues, back in 2013. So we think the time is ripe now for the FCC to issue what’s called a further notice of proposed rulemaking to just focus in on this 5.9 gigahertz issue that it hasn’t addressed in previous orders, issued as a result of that first NPRM in 2013.
We’re hopeful that FCC will do that in the near term. I think it’s clear that the uncertainty in the stasis here doesn’t serve anyone. So we’re certainly hopeful that the Commission moves forward with an FNPRM in the near term and solicits comments. And then everybody can get their views on the record, and the Commission will then be well-positioned to make the right decision.
Prof. Christopher J. Walker: And I’m guessing that’s not the type of regulatory certainty Hilary’s looking for.
Hilary Cain: We would love to see this issue put to bed at the FCC. I can’t say that enough. I’m so beyond sick and tired of having to deal with this. Again, it’s been six and a half years. The one thing that we’re a little bit uncomfortable with is moving forward with anything that could impact -- that could create harmful interference for DSRC or degrade DSRC performance without completing the work that was promised to us and agreed to by all stakeholders back in 2016 when there was a record refresh on this issue. And that relates to testing.
There was a three-phase test plan that was put out. Phase one, testing was completed, and the results were finally released after being buried at the Commission for nearly a year but were finally released at the end of last year. Phase two is getting underway, but we still would like to see all three phases completed before the Commission were to make any decisions that could impact the existing DSRC or planned DSRC deployments in the band.
Danielle Pineres: And Chris, if I could just respond on the testing point. Really, that testing was the product of another age. There’s been a lot of developments in the band since then. The testing is designed to focus on co-channel interactions with WIFI and DSRC. It would be WIFI and DSRC operating on the same channel. From our perspective, from NCTA’s perspective, we’ve never been a proponent of co-channel operations, this sort of detect and vacate approach where WIFI would have to listen for a DSRC signal and then would have to vacate the entire 75 megahertz if one car drove past. That is not an approach that we think will work. We think that’s a poisoned pill and would result in WIFI not having meaningful access to the band.
So in that time since the tests were conceived, we discovered this detect and vacate approach -- not going to be a functional approach. We’ve also seen C-V2X enter the mix. And I think at this stage, no one is proposing a co-channel solution to sharing. So I think, really, it’s sort of a red herring to say that we should complete there three phases of testing when things have sort of moved beyond the testing at this point. And we should be, I think, focusing on a solution that will really move things forward and not be stuck on a technical solution that has sort of become passé.
Prof. Christopher J. Walker: Hilary or Dean, do you have any kind of reactions to that?
Hilary Cain: Yeah. I can respond to that. I think that’s ridiculous to be honest. I think we may need to re-envision what testing looks like. But the idea that decisions could be made that would impact existing deployments, that would cause existing communications to be moved from one channel to another, any cross channel interference that would occur between WIFI operating in the lower part of the band and DSRC transmissions operating in the upper part of the band, that decisions on that would be made without having any data about what the impact would be to DSRC seems really irresponsible.
I agree C-V2X hasn’t been anticipated or contemplated in the testing plan that was put out in 2016. I think we need to accommodate that and figure out how to bring that into the fold before any decisions would be made about allowing C-V2X into the band. But asking the Commission to make decisions without any data or evidence about harmful interference to DSRC would be shocking, in my opinion.
Prof. Christopher J. Walker: I’m just going to follow up on that. What’s the timeline for the testing? Where are we at in the process? How much longer would it take?
Hilary Cain: I don’t know the answer to that, but it’s taken too long so far. Like I mentioned, the phase one testing was done. And then the results weren’t released for nearly a year, which was a delay -- I don’t understand why there was such a delay. I think we would all be in agreement that the testing has not happened as fast as it needs to happen and would encourage it to move forward with all deliberate speed.
Prof. Christopher J. Walker: Dean, did you have anything to add?
Dean Brenner: Oh, I think we all agree with that. And I think just the reality of the situation, putting what any of the three of us are advocating -- just putting that aside, no one is going to allow WIFI into the band without full suite of testing and test results that show the absence of interference. I think that’s just the reality.
Danielle Pineres: Yeah. I think that’s true. That’s how the FCC does business. But this very particular set of testing that was designed by FCC and DOT, maybe this first phase that the FCC did in the lab, made some helpful conclusions stating that adjacent channel operations between WIFI and DSRC, operating next door to each other in different parts of the band might be possible. Maybe that’s helpful.
But I think kind of continuing down the path of really focusing on these co-channel tests at DOT with sort of widespread -- lots and lots of vehicles is maybe not the right approach. The FCC standard approach here is to solicit technical studies from the private sector. People put those on the record. They put their testing on the record. And I think there’s certainly a path forward to enable the Commission to make to a good decision on a full record without needing to pursue the ongoing testing that Hilary referred to.
Micah Wallen: All right, callers. As soon as you hear the prompt, go ahead and ask your question.
Caller 1: So a great panel. I was just hoping that the panelists -- and I hope its not beyond the scope of the discussion already -- might talk a little bit about the Fourth Amendment implications of your car communicating with public infrastructure, I assume including location information, whether there’s an opt in or opt out of that data being shared or whether we’re consenting by driving a new car with either WIFI location information or a cellular vehicle-to-everything means that our locations and our identities aren’t being shared widely and publicly. Do you have any views on that?
Dean Brenner: This is Dean. I can certainly say I have -- you could put my views about the Fourth Amendment implications of C-V2X on the head of a pin. But what I can say is I don’t think there’s any fundamental difference from a Fourth Amendment point of view between C-V2X and DSRC. And I’ll leave it at that.
Hilary Cain: Yeah. I’m not an expert in this area either. But what I do know, which is limited, is that this idea of the possibility of location tracking has been something that was under consideration throughout the development of DSRC. And there was a great sensitivity to it. So there was a strong interest in insuring that any location information that was being shared as part of the basic safety message, for example, could not be linked back to a specific vehicle out of sensitivity for that.
I don’t know much more beyond that. It’s something I’ve been hearing about for years and years and years. It’s an issue that comes up regularly. And I think we could speak with some confidence that steps were taken to try to address those and would be happy to get you in touch with the right person to talk more in depth about the steps that were taken. But no one’s interested in tracking anybody. At least, we’re not interested in tracking anybody using this technology.
Dean Brenner: Same here. And that’s why you don’t need a cellular subscription to talk car to car using C-V2X.
Prof. Christopher J. Walker: It could be a very powerful law enforcement tool, though, if there’s a way to actually track individual cars. But it sounds like you’re making strong efforts to make sure that doesn’t happen.
Dean Brenner: Correct.
Prof. Christopher J. Walker: Well, I’ve learned a lot, and this has been a really fun exchange of ideas. I’d love to get even more than two people that have very, very, very different positions on how to move forward with this technology. If we had more time, I would kind of also love -- but we don’t -- love to hear a little bit more about what it’s like to be before the FCC and a multi-member Commission. And in particular, I found it quite interesting—and someone needs to probably write this up as an academic at some point—just the role that Hilary mentioned of individual commissioners reaching out in shaping of the regulatory framework in the background. I think that’s a really fascinating approach to a multimember Commission.
But I just want to thank Danielle, Hilary and Dean for taking the time out of your busy schedules to host this teleforum. Their information I think -- I’m sure their emails are available on their company websites. So feel free to reach out if you have additional questions. I’d just like to also thank The Federalist Society for facilitating this great discussion.
Micah Wallen: Absolutely. And on behalf of The Federalist Society, I’d like to thank all of our experts for the benefit of their valuable time and expertise today. We welcome listener feedback by email at email@example.com. Thank you all for joining us. We are adjourned.
Operator: Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at fedsoc.org/multimedia.