[00:00:00] Speaker 04: Case number 21-1130 et al, Intelligent Transportation Society of America and American Association of State Highway and Transportation Officials petitioners versus Federal Communications Commission and United States of America. [00:00:14] Speaker 04: Mr. Turner for the petitioners, Intelligent Transportation Society of America et al. [00:00:20] Speaker 04: Mr. Gehman for the petitioner, Amateur Radio Emergency Data Network. [00:00:24] Speaker 04: Mr. Novak for the respondents. [00:00:29] Speaker 03: Good morning. [00:00:30] Speaker 03: Mr. Turner, you may proceed when you're ready. [00:00:34] Speaker 01: Thank you, Your Honor. [00:00:35] Speaker 01: May it please the court, Joshua Turner, on behalf of Transportation Petitioners, ITS America, and the American Association of State Highway and Transportation Officials. [00:00:46] Speaker 01: The FCC has taken an extraordinarily broad view of its authority to determine what is in the public interest, so broad that they say it's not even impacted by Congress's decision to mandate the creation of a program designed to reduce the nearly 40,000 deaths every year on the highway. [00:01:01] Speaker 01: is fully supporting that congressional priority in the public interest, the FCC says no. [00:01:07] Speaker 01: In doing so, the FCC has, in DOT's own words, and this is a JA536, substituted its own judgment for transportation safety matters for that of transportation safety stakeholders, whose overriding concern is trying to make the roads safer, and who believe that the kinds of capabilities that can only be provided in the full 75 megahertz safety band are critical for doing so. [00:01:29] Speaker 01: There's a reason that my clients [00:01:31] Speaker 01: which include all 50 state DOTs and a cross section of transportation safety professionals brought this challenge. [00:01:37] Speaker 01: And the groups like the American Traffic Safety Services Association, National Safety Council, and Mothers Against Drunk Driving, among others, are amici supporting our position. [00:01:48] Speaker 01: To understand the commission's error, you really only need to focus on a few paragraphs of the order. [00:01:53] Speaker 01: The first, paragraph 123, and that's at JA 639, is the only place that the FCC substantively addresses Congress's enactment of the Transportation Equity Act. [00:02:05] Speaker 01: In just a few sentences, the order waives Congress's views aside and concludes that, quote, all Congress required, unquote, from the Commission was to complete a rulemaking following the statute's enactment. [00:02:16] Speaker 01: The Commission doesn't give any serious consideration to the congressional priorities embodied in the Transportation Equity Act, nor does it wrestle with the fact that Congress also delegated authority to DOT to design and manage the intelligent transportation program and that it is DOT, not the FCC, that has the expertise to do that. [00:02:33] Speaker 03: Mr. Turner, as I read the Transportation Equity Act, it doesn't require really anything in particular other than attention to the emerging [00:02:45] Speaker 03: intelligent transportation possibility. [00:02:49] Speaker 03: It sets up a lot of urging study and drawing on various expertise and considering this and considering that. [00:02:56] Speaker 03: And so I just wonder what safety benefits does it require [00:03:03] Speaker 03: that support your claim that safety benefits are certainly lost as a result of the order you challenge. [00:03:12] Speaker 03: What is the act that's required that wasn't taken? [00:03:18] Speaker 01: Well, so your honor, a couple of points on that. [00:03:21] Speaker 01: I agree with you that there's no specific safety benefit that is mandated in the program, because what the program does is give the authority to DOT to design and manage the program. [00:03:31] Speaker 01: And Congress understood that this is a dynamic situation and that there would be safety benefits that would occur over time that DOT should consider and put in place. [00:03:42] Speaker 09: What do we make of the fact that DOT no longer has that position? [00:03:46] Speaker 01: Well, Your Honor, two things on that. [00:03:49] Speaker 01: One, I don't think we can confidently say that DOT no longer has that position because what the United States filed was a brief saying, we have joined the FCC's brief after considering all of the various different equities, including the FCC's position. [00:04:02] Speaker 01: They notably did not say that DOT had changed its position, but more importantly. [00:04:07] Speaker 09: It doesn't matter. [00:04:09] Speaker 09: Are you familiar with the famous case? [00:04:12] Speaker 09: Where do I have it? [00:04:14] Speaker 09: The Castle case that Judge Wald wrote back in the early 80s. [00:04:20] Speaker 01: No, Your Honor, I'm not familiar with that off the top of my head. [00:04:23] Speaker 09: It's a wonderful essay on the unitary executive pointing out that President Carter was entitled to ignore EPA's views. [00:04:33] Speaker 09: And she made clear in that opinion that single issue agencies often don't have the right answer. [00:04:42] Speaker 09: And the President is entitled to consider broader spectrum. [00:04:48] Speaker 01: Understood, Your Honor. [00:04:49] Speaker 01: I think that, but the important point here is that at the end of the day, the order being challenged here is an order by the FCC. [00:04:56] Speaker 01: And the Administrative Procedures Act requires the FCC to have evidence in front of it that it can rely on. [00:05:02] Speaker 01: And so what matters here is not what DOT thinks about the order now today, what the president thinks about the order now today. [00:05:09] Speaker 01: What matters is the evidence that DOT put into the record. [00:05:12] Speaker 01: And that's at JA 536. [00:05:14] Speaker 01: In the November 9th letter, DOT issued a scathing letter saying, you haven't listened to us. [00:05:20] Speaker 01: You haven't consulted us. [00:05:21] Speaker 01: You haven't addressed any of our objections to this program. [00:05:24] Speaker 09: None of the stuff that you need to be justified. [00:05:26] Speaker 09: In light of the fact that the government has taken the side of FCC, the Unindependent Regulatory Agency, as against the government department, can't we conclude the government department's views are no longer espoused by the [00:05:42] Speaker 09: executive branch? [00:05:44] Speaker 09: Why are they relevant anymore? [00:05:47] Speaker 01: Well, I think the independent agency's views were relevant at the time that the FCC issued its decision. [00:05:53] Speaker 09: Because that was the record. [00:05:55] Speaker 09: I'm not talking about the independent agency. [00:05:57] Speaker 09: I'm talking about DOT. [00:05:58] Speaker 01: Right. [00:05:58] Speaker 01: I'm sorry. [00:05:59] Speaker 01: The DOT's views were relevant at the time that the independent agency issued its decision because that was what was on the record before it. [00:06:06] Speaker 01: That's all that the independent agency had. [00:06:08] Speaker 01: It had to consider the record that was before it and make its decision. [00:06:12] Speaker 01: DOT said, you're not doing the right thing here. [00:06:15] Speaker 01: And that's relevant because DOT has that expertise in determining what is and is not a transportation safety function. [00:06:22] Speaker 03: So the Commission did have extensive comments, as you point out, from DOT, considered those. [00:06:31] Speaker 03: What more would the Commission have had to do to fulfill its duty of consultation in your view? [00:06:40] Speaker 01: Well, so a couple of things on that, Your Honor. [00:06:43] Speaker 01: I mean, first of all, we think that the duty of consultation is an independent duty that is established by the Act. [00:06:48] Speaker 01: And you can't just say, oh, we took public comment, and we fulfilled our duty of consultation, because if all you were going to do is take public comment, then the statute wouldn't need to say you need to consult, right? [00:06:58] Speaker 03: I mean, you didn't make that surplusage argument in your opening brief, did you? [00:07:02] Speaker 01: I'm sorry? [00:07:03] Speaker 03: You didn't make that argument that the duty to consult would be rendered statutory surplus edge if it all it meant was that you had the same opportunity as everyone else to comment under the APA you didn't make that argument in your opening brief. [00:07:18] Speaker 01: I apologize, Your Honor, I haven't looked back at our opening brief to find that but I think we certainly are making, if we did not use the term surplusage, we certainly made that point, which is that the consultation obligation is an independent obligation that is broader than simply doing what you normally do. [00:07:35] Speaker 03: There isn't any dispute that there was consultation when the 75 megahertz of the 5.9 spectrum was initially set aside back in, whatever it was, 1999. [00:07:46] Speaker 03: There was consultation then. [00:07:48] Speaker 01: There did seem to be consultation then, Your Honor. [00:07:50] Speaker 01: And so that's another thing that I think... But wait a minute, why isn't that enough? [00:07:54] Speaker 01: Why isn't that enough? [00:07:56] Speaker 01: Because I don't read the Transportation Equity Act as being a one-time shot the way that the commission does. [00:08:03] Speaker 01: The commission seems to say, look, the only thing that we needed to do was consult once, and then in 1999, we were done. [00:08:09] Speaker 01: And then after that, our authority under the Communications Act springs back into place, and we don't have to think about the Transportation Equity Act again. [00:08:16] Speaker 01: And I don't read the statute that way, and I submit to Your Honor that it wouldn't make a whole lot of sense to read the statute that way. [00:08:21] Speaker 01: Because as we say in our brief, [00:08:22] Speaker 01: If that were the case, then the commission could simply turn around the day after and decide that it was going to ban intelligent transportation programs in the United States, and no one would have a thing to say about it. [00:08:34] Speaker 01: Now, the F.C.C. [00:08:34] Speaker 03: That might be arbitrary and capricious. [00:08:36] Speaker 03: I'm not sure that it would violate the act, but think about it this way. [00:08:39] Speaker 03: Let's say at the beginning in 1999, what the F.C.C. [00:08:43] Speaker 03: did was allocate 30 megahertz of spectrum. [00:08:47] Speaker 03: and what DOT wanted was 75. [00:08:49] Speaker 03: Does that mean that every single time the FCC allocated any other spectrum to any other party that the FCC would have had a duty to consult with DOT because DOT says, hey, we should be getting that? [00:09:04] Speaker 03: That seems impossible to me. [00:09:06] Speaker 03: And that seems to flow from your reading. [00:09:08] Speaker 01: No, no, no. [00:09:09] Speaker 01: I think, Your Honor, [00:09:10] Speaker 01: that is a more aggressive reading than we would give. [00:09:15] Speaker 01: Our point is that to the extent the FCC is acting on the intelligent transportation program. [00:09:21] Speaker 01: Now, your honor, if the commission were to say, we've allocated 75 and we're thinking about taking 15 away from that, then yes, I think that triggers the duty to consult. [00:09:29] Speaker 01: If your honor is saying that because there's a duty to consult anytime spectrum becomes available, they need to ask DOT if it wants it first. [00:09:35] Speaker 01: I mean, I don't think there's a right of first refusal here. [00:09:38] Speaker 03: Or wouldn't there be under your reading if there's a continuous duty to the extent that it has an impact on intelligent transportation program as DOT defines it. [00:09:47] Speaker 03: And if DOT at the beginning said, we need 75 megahertz to do all this real time, no line of sight technology, and you've fallen short, then don't they have a duty consult every time that spectrum gets allocated elsewhere? [00:10:04] Speaker 03: Under your reading. [00:10:05] Speaker 01: No, Your Honor, I think they have a duty. [00:10:06] Speaker 01: I think the duty to consult is continuous. [00:10:09] Speaker 01: But I don't think that it is, it is the case that the commission therefore has to give a right of first refusal to the DOT. [00:10:15] Speaker 01: I mean, I just don't see that in the, in the statute. [00:10:18] Speaker 03: Right of first refusal but a right of consultation. [00:10:20] Speaker 03: And in your, in your reading I'm just taking what I understand to be your reading that it's not a one time. [00:10:27] Speaker 03: obligation where this is sort of something coming on the scene, you know, let's all consider it, let's get DOT in this business, but no real specifics about what DOT needs to do and it, you know, FCC participated in that inaugural moment. [00:10:44] Speaker 01: But Your Honor, so two points on that. [00:10:46] Speaker 01: I think one, [00:10:48] Speaker 01: The alternative is just as crabbed, right? [00:10:51] Speaker 01: The alternative reading is just as weird because if you assume that the FCC only has the duty to consult once, then you end up in a situation where the commission could reassign the spectrum without any consultation, without even hearing public comment from DOT. [00:11:04] Speaker 01: And that doesn't make sense. [00:11:05] Speaker 09: Well, in this case, they did have public comment, right? [00:11:08] Speaker 09: Correct. [00:11:10] Speaker 09: Why wasn't that adequate? [00:11:11] Speaker 09: Even if you legitimately had raised the consultation in your opening brief, why isn't that legitimate? [00:11:18] Speaker 01: So, Your Honor, I think in our opening brief, we make a couple of points here, right? [00:11:22] Speaker 01: We say that the Transportation Equity Act imposes a heavier burden on the FCC. [00:11:27] Speaker 09: I'm just asking about consultation now. [00:11:31] Speaker 09: The Department of Transportation is perfectly happy, as far as we're concerned, in this case, at this point, with the consultation they got. [00:11:41] Speaker 01: So your honor, I think the consultation, if you had seen real and meaningful consultation, you wouldn't have seen DOT in November of 2020 coming in and saying, you didn't talk to us. [00:11:52] Speaker 09: And you ignored all of our- Well, apparently that's not their view now. [00:11:55] Speaker 01: Well, but your honor, I mean, again, sort of going back to the point, I think the view that matters is the view that predated the order, because that's all the FCC had in front of it when it was making the decision. [00:12:07] Speaker 01: And that's the record. [00:12:09] Speaker 09: It certainly had the comments, didn't it? [00:12:11] Speaker 01: It did have the comments, yes, Your Honor. [00:12:13] Speaker 09: And why wouldn't that be adequate consultation? [00:12:17] Speaker 09: Because I don't believe that that... Did they have to meet in a telephone booth? [00:12:22] Speaker 01: No, Your Honor, but I do think they have to do more than what they would be obligated to do with any other part. [00:12:27] Speaker 09: And what would more be? [00:12:29] Speaker 09: I think in this case... On the phone? [00:12:33] Speaker 01: Well, in this case, we don't know what they did because the Commission didn't recite anything in its order, explaining what it did in terms of consultation beyond saying, hey, we took public comment. [00:12:44] Speaker 09: What else would be required? [00:12:47] Speaker 09: Tell me, what would be required? [00:12:49] Speaker 09: I think one thing that one thing going to lunch. [00:12:54] Speaker 01: I think, Your Honor. [00:12:56] Speaker 01: you can understand in part whether or not the consultation was meaningful by the results of the consultation. [00:13:02] Speaker 09: That doesn't mean, I mean, your honor, I think- In other words, the FCC, your case is the FCC was obliged to take into account the original position of the Department of Transportation and rule in their favor. [00:13:18] Speaker 01: No, no, no, your honor. [00:13:19] Speaker 01: That's actually not my case. [00:13:21] Speaker 01: That's the case that Mr. Gaiman is going to argue, but my point is a subtler one. [00:13:26] Speaker 01: My point is that the FCC was obligated to give DOT's views in this matter considerable weight, and they were obligated to do that for a number of different reasons, right? [00:13:36] Speaker 01: One is the Transportation Equity Act, but the other is that the DOT is the expert agency on these matters of transportation policy, and the FCC is not. [00:13:44] Speaker 01: And even if the Transportation Equity Act did not exist, [00:13:47] Speaker 01: Our point in our opening brief is that the commission didn't give sufficient weight to what DOT and other transportation safety stakeholders, not just DOT. [00:13:56] Speaker 01: It's also that all 50 state DOTs who are my clients, every other transportation safety stakeholder, all said 30 megahertz is insufficient. [00:14:04] Speaker 01: Who did the commission listen to? [00:14:06] Speaker 01: The commission listened to the cable industry. [00:14:08] Speaker 01: The commission listened to Open Technology Institute and Public Knowledge. [00:14:11] Speaker 01: If you look at footnotes 84 through 88 of the order, [00:14:16] Speaker 01: The part where the commission says, hey, we think that 30 megabits is sufficient. [00:14:21] Speaker 01: Those are the people that they're citing. [00:14:23] Speaker 01: And our point is, it's arbitrary and capricious under any standard for the commission to take the word of the cable industry on transportation safety policy over the word of DOT, all of the state DOTs, all of the other transportation safety stakeholders who said, this can't work. [00:14:39] Speaker 01: And what you're doing doesn't fulfill the goals of the intelligent transportation program. [00:14:43] Speaker 01: So take the TEA out of it, they still lose on arbitrary and capricious. [00:14:50] Speaker 03: Your clients didn't submit anything on standing or really argue it, what's the basis of the standing? [00:14:56] Speaker 01: Well, Your Honor, our clients, I think we did recite in our brief, our clients are licensees in the ITS spectrum. [00:15:05] Speaker 01: We are dramatically affected by this order. [00:15:08] Speaker 01: ITS has licensees who will have to spend money to rip and replace their units with these new units that the commission wants them to install. [00:15:18] Speaker 03: That's about the change from DRSC to C-2X. [00:15:23] Speaker 03: And that's not, I thought that wasn't even challenge. [00:15:25] Speaker 01: No, I'm sorry, Your Honor, it's about both because our clients use the full spectrum now. [00:15:31] Speaker 01: And so we'll need to change their units to address this 60% smaller home that the FCC has given them. [00:15:38] Speaker 01: And so yes, we are directly impacted by the order. [00:15:41] Speaker 01: And of course, both of us participated, both of these clients participated in the proceeding below. [00:15:45] Speaker 01: And so I think our standing is fairly self-evident. [00:15:49] Speaker 01: And in fact, I think the FCC acknowledged our standing on that point. [00:15:53] Speaker 03: But we have an independent duty and typically we have a little bit more chapter and verse about you know which members of an association are doing what and actual evidence explaining, you know, averring to us, because this is the first Article III court you're in, explaining to us what factual basis we can rely on for standing. [00:16:14] Speaker 01: Yes, your honor, I do believe that we addressed that in our brief and we made the point that we have, you know, I mean, the commission talks about the 10s of 1000s of these units that are operating across the country. [00:16:26] Speaker 01: Those units are being operated by members of our association. [00:16:34] Speaker 02: Maybe in your reply, if you have a chance to look at your opening brief. [00:16:38] Speaker 02: between now and then, you could address the concern that you forfeited the argument that FCC's consultation with DOT was statutorily insufficient. [00:16:51] Speaker 02: Certainly, Your Honor, I will. [00:16:55] Speaker 03: Right. [00:16:56] Speaker 03: Colleagues, further questions? [00:16:58] Speaker 02: No. [00:16:59] Speaker 03: All right, Mr. Turner, I think we used all your time, but we will give you a couple of minutes for rebuttal. [00:17:07] Speaker 01: Thank you, Your Honor. [00:17:09] Speaker 03: All right, now we'll hear from Mr. Gaiman. [00:17:12] Speaker 03: Is it Gaiman or Gaiman? [00:17:14] Speaker 08: Gaiman. [00:17:14] Speaker 08: Gaiman. [00:17:15] Speaker 08: Good morning, Judge Pillard, and may it please the court. [00:17:22] Speaker 08: My name is Julian Gaiman. [00:17:23] Speaker 08: I represent Amateur Radio Emergency Data Network, or ARDN. [00:17:29] Speaker 08: So I'm going to follow up on the judge's questions about how the order is inconsistent with the transportation statute. [00:17:40] Speaker 08: and as set out in our portion of the brief, our theory is that the FCC has limited rulemaking authority, limited to the final rule being not inconsistent with law. [00:17:55] Speaker 08: So I'm going to quickly run through three ways that the order is inconsistent with the transportation statute. [00:18:04] Speaker 08: First, the order outlaws DSRC and mandates CV to X, [00:18:11] Speaker 08: And this is inconsistent with the Congress's instructions that the secretary must set ITS standards. [00:18:19] Speaker 08: The FCC is setting the ITS standard instead of DOT. [00:18:24] Speaker 08: Second, as you were previously discussing, the order finds that 30 megahertz is sufficient spectrum for safety-related functions. [00:18:33] Speaker 08: This is inconsistent with Congress's requirement [00:18:37] Speaker 08: that DOT defined the communications requirements of the national architecture. [00:18:44] Speaker 08: Third, the order makes FCC licensees abandon the architecture. [00:18:50] Speaker 08: These are Mr. Turn's clients who simultaneously have an obligation to the FCC under their FCC license and also have an obligation under 23 USC 517D [00:19:06] Speaker 08: to follow the national architecture. [00:19:10] Speaker 09: And Mr. Turner's clients. [00:19:12] Speaker 09: Councilman, I asked the question about standing here. [00:19:15] Speaker 09: Why do you have standing to complain about the change in character in the 30 megahertz bands? [00:19:27] Speaker 08: So we are challenging the entire order. [00:19:30] Speaker 09: No, no, I asked why are you injured by the change in character [00:19:35] Speaker 09: of the 30 megahertz? [00:19:38] Speaker 08: Sure. [00:19:40] Speaker 08: My clients are amateur radio licensees. [00:19:44] Speaker 08: They are secondary in status to either DSRC or cellular VitaX, either one of those. [00:19:54] Speaker 08: And so for them, the question is, which system is easier to engineer around and not interfere with? [00:20:05] Speaker 09: Isn't the real truth that you want to keep an outmoded technology so there's more room for you to play? [00:20:16] Speaker 08: We take no position on what's current and what's outmoded. [00:20:23] Speaker 09: Then what is your injury? [00:20:25] Speaker 09: I don't get it. [00:20:26] Speaker 08: From an engineering standpoint, it's easier for amateur radio [00:20:35] Speaker 08: than it is to avoid interfering with cellular VitaX. [00:20:40] Speaker 09: Because the original technology is not used at all. [00:20:45] Speaker 09: So you don't have to worry about it. [00:20:47] Speaker 08: On the contrary, almost every ITS installation in the United States has been using DSRC. [00:20:55] Speaker 08: And if this order stands, they're going to have to change that technology to go to cellular VitaX. [00:21:03] Speaker 09: Okay. [00:21:04] Speaker 09: And why does that cause injury to you? [00:21:09] Speaker 08: Okay. [00:21:12] Speaker 08: Cell towers are about 100 to 300, 400 feet high. [00:21:19] Speaker 08: When a radio signal is broadcast from a cell tower, it covers a very broad area. [00:21:28] Speaker 08: By contrast, DSRC, the incumbent technology, [00:21:32] Speaker 08: uses what are known as roadside units. [00:21:35] Speaker 08: They're about 25 feet high. [00:21:38] Speaker 08: They're spaced alongside of a freeway or a road. [00:21:42] Speaker 08: They have a much smaller radio footprint. [00:21:46] Speaker 08: It's easier for amateur radio operators to avoid that radio footprint than a gigantic one that's put up by big cell towers. [00:22:00] Speaker 09: I see. [00:22:09] Speaker 03: You are also taking the position that the departure from prior policy violates the TEA, not just the Administrative Procedures Act. [00:22:25] Speaker 03: And your strongest argument there? [00:22:27] Speaker 08: Our argument is focused on Section 303R. [00:22:36] Speaker 08: the authority to engage in rulemaking. [00:22:41] Speaker 08: And our argument is that the FCC overstepped its statutory authority to engage in rulemaking by putting out an order that is inconsistent with Department of Transportation's authority. [00:22:56] Speaker 03: And the authority that you're pointing to that the Department of Transportation gained in the Transportation Equity Act is exactly what? [00:23:06] Speaker 08: 23 USC 517A1, the secretary shall develop and maintain a national ITS architecture and supporting standards and protocols. [00:23:23] Speaker 08: The definition of architecture includes the duty to define communications requirements. [00:23:31] Speaker 08: That has to do with how much spectrum is available to satisfy the information flows [00:23:36] Speaker 08: that the architecture anticipates. [00:23:39] Speaker 08: Also supporting ITS standards, as I've already mentioned, the switch from DSRC to cellular V2X, that usurps the secretary's authority to set that standard. [00:23:57] Speaker 03: Do my colleagues have further questions? [00:23:59] Speaker 08: No. [00:24:01] Speaker 03: All right. [00:24:02] Speaker 03: Mr. Gaiman, did you intend to reserve any time for rebuttal? [00:24:05] Speaker 08: Yes, 30 seconds, please. [00:24:07] Speaker 03: All right, we'll give you 30 seconds after we hear from Mr. Novak. [00:24:15] Speaker 03: Mr. Novak, you may proceed when you're ready. [00:24:18] Speaker 00: Good morning, Your Honors, and may it please the Court. [00:24:21] Speaker 00: The FCC made a reasonable record-based determination [00:24:25] Speaker 00: that retaining 30 megahertz of dedicated 5.9 gigahertz spectrum will serve all demonstrated transportation needs, and that it's neither necessary nor in the public interest to reserve an additional 45 megahertz of spectrum at the expense of other pressing public needs. [00:24:42] Speaker 00: The petitioners here have never clearly demonstrated they would be offering any particular features in 75 megahertz of spectrum that won't be offered in 30 megahertz and about continental's position that they can't do the non light of sight collision avoidance without. [00:24:59] Speaker 03: broader spectrum and Mr. Turner's point that when you recited that the 30 megahertz was sufficient, you're really looking to cellular comments and not to the transportation industry. [00:25:14] Speaker 00: Yes, so taking those in turn, first with respect to Continental's comments that we're discussing what it called collective perception messages. [00:25:22] Speaker 00: The problem there, Judge Pillard, is that the petitioners haven't pointed to any evidence in the record to support or substantiate any claims about those features. [00:25:32] Speaker 00: Vague allegations about what you might hope to do one day in the future aren't enough. [00:25:36] Speaker 00: There has to be some sort of substantiation, some sort of evidence that this is really feasible and that we're likely to see it deployed. [00:25:43] Speaker 00: But they haven't given us anything here or pointed to anything in the record other than their own say so, other than take our word for it. [00:25:51] Speaker 03: There's a little bit of a chicken and egg problem here in that these are technologies that to bring them online, it takes a lot of investment, a lot of infrastructure. [00:25:59] Speaker 03: And so entities need to know, commercial actors need to know, is this going to be there if we build, is the spectrum to use this going to be there? [00:26:08] Speaker 03: And I take your position to be if it's somewhat more [00:26:13] Speaker 03: on the horizon and we would consider it but what needs to be shown for it to be for the for the go-ahead to be given what more needs to be shown because they they are saying you know they do make up of empirical case that yeah it's in the future but it's coming and it does need more spectrum. [00:26:35] Speaker 00: Your honor, just with respect to your point about the chicken or egg issue, the commission made clear in this order, you know, in the further notice for us, we're making a paragraph 189 to 192 that if this technology is one day successively developed, if there's a need, the commission is ready and able to make other spectrum available. [00:26:56] Speaker 00: So I don't think that's an issue. [00:26:58] Speaker 00: Now, I don't think this is a case where this is a question on the margins that might be difficult about when is this technology coming. [00:27:07] Speaker 00: This is one where there was a real dearth of any evidence in the record to demonstrate when or if it might come to fruition. [00:27:16] Speaker 00: And in terms of what evidence there might be, I mean, if they could point to some evidence that someone has developed working demonstrations of this technology, even in a lab, [00:27:26] Speaker 00: or is close to doing so anytime soon. [00:27:29] Speaker 00: But here we have just a dearth of any evidence in the record beyond a self-serving assertion that is not substantiated by any sort of evidence. [00:27:40] Speaker 00: And the commission reasonably found that given the state of this record, this is entirely too uncertain and remote to justify holding Spectrum in reserve at the expense of other pressing need. [00:27:52] Speaker 09: You think of petitioners argument [00:27:55] Speaker 09: that you could require the development of the technology. [00:28:04] Speaker 00: Petitioner's argument, as I understood it, about build out requirements was not about requiring the development of this particular technology. [00:28:15] Speaker 00: And we don't have any reason to believe this technology ever could be successfully developed. [00:28:19] Speaker 00: It's been over 20 years since the spectrum was made available. [00:28:23] Speaker 00: And there's no evidence that anyone has gotten anything off the drawing boards with respect to this. [00:28:27] Speaker 00: I mean, the argument of build out requirements was different. [00:28:31] Speaker 00: That was just saying, we will deploy [00:28:34] Speaker 00: existing developed features, basic safety messages to 5 million vehicles within X number of years. [00:28:42] Speaker 00: And that simply isn't responsive to the problems that the commission was dealing with here. [00:28:46] Speaker 03: Given the speculativeness, is that something we should look at under the APA or is that itself a standing problem? [00:28:54] Speaker 03: The speculativeness of the harm because they haven't alleged enough concrete that they even have a dog in that fight. [00:29:04] Speaker 00: It's an interesting question your honor we haven't challenged they're standing here I do think that it's on very shaky ground. [00:29:11] Speaker 00: Of course from our standpoint, we'd be happy to have the court addresses on the merits because we think that we clearly prevail on the merits about this. [00:29:19] Speaker 00: There's got to be you know some greater information and I want to stress that. [00:29:26] Speaker 00: So, requiring the commission to hold spectrum in reserve and to do so indefinitely, which seems to be what's being sought here it's been 20 years already has significant real world costs. [00:29:38] Speaker 00: So on this record the commission couldn't justify doing that and again. [00:29:42] Speaker 00: If circumstances change and there is a need for additional spectrum later, the commission has said that it stands ready and able to make other spectrum available. [00:29:51] Speaker 00: But we had to make the decision based on the record that's in front of us. [00:29:55] Speaker 00: And the record here simply didn't have any sort of tangible evidence that could substantiate any representations that were being made about this technology. [00:30:04] Speaker 03: Let me ask you about the duty to consult. [00:30:08] Speaker 03: What, what do you think that entails the record does not suggest that that the commission did any outreach to the Department of Transportation, other than the nose of proposed rulemaking and accepting comments. [00:30:22] Speaker 00: I don't think that's correct with respect to the record, Your Honor, and I'll just point out that as several judges recognize the petitioners didn't raise this argument in their opening brief. [00:30:32] Speaker 00: So we didn't have an opportunity or occasion to go into more detail. [00:30:36] Speaker 00: But the record here establishes that the Department of Transportation provided multiple rounds of feedback, not just on the public NPRM and the order. [00:30:46] Speaker 00: but that the FCC shared with them private advanced drafts before anything went out to the public and there were private advanced consultations. [00:30:53] Speaker 00: You'll see that. [00:30:54] Speaker 03: Where do we see that? [00:30:55] Speaker 03: Yeah, go ahead. [00:30:56] Speaker 00: So pages 386 to 414 of the Joint Appendix is a letter from the Department of Transportation commenting on a private pre-release draft of the Notice of Proposed Rulemaking. [00:31:07] Speaker 00: pages 563 to 576 is a letter from the Department of Transportation commenting on a private pre-release draft of the order, and the record reflects the commission made modifications in response to those private Department of Transportation comments before anything ever went out to the public. [00:31:25] Speaker 00: You'll see that, for instance, at page 536. [00:31:28] Speaker 00: And then on top of all of that, our staff informed me that prior to the coronavirus pandemic, there were in-person meetings between FCC staff and Department of Transportation staff to discuss these concerns. [00:31:41] Speaker 03: So I think by any standard... The timing of those even generally, I mean, it was before this order went out? [00:31:49] Speaker 00: Yes, Your Honor. [00:31:52] Speaker 00: So we simply think that by any reasonable standard, there was ample consultation here. [00:31:58] Speaker 03: That's very helpful. [00:32:05] Speaker 03: You may have already said this, but one, I think part of a compound question that I asked you was whether, what would be enough? [00:32:14] Speaker 03: I mean, the, I think it was Continental says actually this non-light of sight perception and maneuver coordination technology is like within three years of being able to be deployed. [00:32:29] Speaker 03: If they had evidence of that, [00:32:31] Speaker 03: Is that enough? [00:32:32] Speaker 03: I mean, again, there's this issue of investment and reliance planning. [00:32:39] Speaker 03: What is enough for some future, very beneficial safety technology to command the commission's interest in terms of spectrum allocation? [00:32:54] Speaker 00: So there has to be some level of substantiation. [00:32:58] Speaker 00: And we fully recognize there could be close cases. [00:33:01] Speaker 00: I do think if there was evidence of significant development that gave real reason to believe that this was likely to be deployed within three years, that there's some reasonably foreseeable amount of time that might let you make some sort of reliable predictions. [00:33:19] Speaker 00: The issue here, of course, is just a complete dearth of evidence in the record that I think makes this an easy case and doesn't provide cause to hold spectrum in reserve. [00:33:29] Speaker 00: And I think the commission pointed additionally to the fact that this is not something new. [00:33:34] Speaker 00: This is spectrum that was allocated originally in 1999. [00:33:37] Speaker 00: And you don't see any meaningful deployments, even of quote unquote existing features that have been developed. [00:33:44] Speaker 00: which really calls into question any predictions now being made about the future, about advanced technologies that, as far as we can tell, are not meaningfully in progress in a way that gives any degree of confidence that this is something that could be deployed. [00:34:01] Speaker 00: I think in this circumstance, it was entirely appropriate for the Commission to decide that as between a holding spectrum in reserve at the expense of current pressing needs or [00:34:14] Speaker 00: dealing with other present needs. [00:34:17] Speaker 00: And given the availability potentially of other spectrum, should this technology be developed, this was an eminently reasonable decision, I think, under the APA. [00:34:26] Speaker 03: How difficult is it to clawback spectrum once it's been allocated to unlicensed use as here? [00:34:32] Speaker 03: And when you talk about other spectrum, that wouldn't be adjacent, would it? [00:34:35] Speaker 03: So how much does this foreclose rather than just postpone? [00:34:43] Speaker 03: the kind of consideration that that Mr Turner's clients are asking for Mr game is clients are asking for. [00:34:48] Speaker 00: So your honor I think you're right that you know we're not suggesting that it would necessarily be clawing back the same spectrum here. [00:34:55] Speaker 00: But my understanding the record is that. [00:35:00] Speaker 00: any mid-band spectrum would suffice. [00:35:03] Speaker 00: There's different spectrum ranges that have different properties, but this non-line of sight property is not limited to this narrow 45 megahertz we're talking about. [00:35:12] Speaker 00: It deals with an expanse. [00:35:14] Speaker 00: And I think you'll see that the commission has been actively engaged in a number of techniques to make spectrum available when needed. [00:35:23] Speaker 00: I mean, you see here, we're able to move spectrum around. [00:35:27] Speaker 00: If you look at the PSSI case, it's heavily cited in the briefs. [00:35:31] Speaker 00: The commission took steps to make additional spectrum available. [00:35:34] Speaker 00: So there's been no reason to think that it wouldn't be possible to make suitable spectrum available. [00:35:40] Speaker 00: We're not saying it would necessarily be the same particular 45 megahertz of spectrum. [00:35:45] Speaker 00: But nothing here rises the level of showing that the commission wouldn't be able to suitably deal with this problem. [00:35:53] Speaker 00: were we to ever hit a point where this appeared to be a problem? [00:36:00] Speaker 03: My only other question is about whether it really is reasonable to say that this duty to consult with and consider the spectrum needs of the intelligent transportation system was a one-time deal in 1999-2000. [00:36:17] Speaker 03: and whether you're really taking the position that the obligation of the Commission, apart from sort of the ongoing APA obligation to consider all comments, that the obligation under the Transportation Equity Act is over. [00:36:32] Speaker 00: Your honor, it's not a position that we're pressing. [00:36:35] Speaker 00: I mean, we're not arguing we didn't need to consult, we're telling you we did actively consult and simply as a good governance measure, you're going to expect agencies like the FCC to do this. [00:36:45] Speaker 00: So I think that's a little bit of a mood issue I do see that it's a little bit questionable whether that consultation is required, but the commission here chose to do so. [00:36:55] Speaker 00: Now, what Mr. Turner was pointing to on this, I believe, is paragraph 123 of the order. [00:37:01] Speaker 00: And I think the petitioners have persistently misread what's being done there. [00:37:05] Speaker 00: And I think it's helpful to step back and recognize there are really two different doctrinal issues here that is important to keep analytically distinct. [00:37:13] Speaker 00: One is the question of whether the FCC had statutory authority to manage the spectrum. [00:37:18] Speaker 00: And then there's a separate question under the APA about whether the commission's exercise of authority was reasonable. [00:37:24] Speaker 00: And paragraph 123 of the order was responding to arguments about the commission's statutory authority. [00:37:30] Speaker 00: The heading there is statutory considerations. [00:37:33] Speaker 00: It refers to statutory duties. [00:37:35] Speaker 00: And it correctly says that as a purely statutory matter, the Transportation Equity Act simply directed the commission to conduct a rulemaking and to consider the spectrum needs of vehicular communications, and in no way restricted the commission's statutory authority to manage that spectrum. [00:37:51] Speaker 00: Now, whether a given action taken under that authority is reasonable is really a separate question under the APA. [00:37:58] Speaker 00: And when managing spectrum for vehicular communications, the commission always has considered policy goals like those in the Transportation Equity Act that Congress has set forth in other relevant statutes. [00:38:13] Speaker 03: My colleagues have questions. [00:38:16] Speaker 02: Let me ask one question about the future. [00:38:20] Speaker 02: Before I do, let me see if I have my terminology right. [00:38:23] Speaker 02: The spectrum that's been newly made available, is that spectrum for unlicensed Wi-Fi uses? [00:38:29] Speaker 02: What's the right term for that? [00:38:31] Speaker 00: Yeah, so the right term would be that we have repurposed the lower 45 megahertz for unlicensed use. [00:38:38] Speaker 02: Well, let me ask, am I right that there's a very [00:38:47] Speaker 02: broad range of spectrum beginning around five gigahertz that's now available for unlicensed use. [00:38:55] Speaker 02: And then there's also very broad range of spectrum beginning at six gigahertz that's available for unlicensed use. [00:39:02] Speaker 02: And the only thing in between those two very broad ranges are now this very small sliver of 30 megahertz for intelligent transportation. [00:39:13] Speaker 02: Is that in the ballpark of correct? [00:39:16] Speaker 00: My understanding is a little bit more complicated than that, both with kind of what the quantity is in the five gigahertz band I think it's around kind of five eight. [00:39:26] Speaker 00: And I'm not sure whether there's anything else that that potentially could operate in the middle I mean this this 5.9 gigahertz sliver. [00:39:33] Speaker 00: is not just intelligent transportation. [00:39:35] Speaker 00: It's never been exclusive to vehicular use. [00:39:38] Speaker 00: It's available for amateur radio operations, for instance. [00:39:41] Speaker 00: That's why we have the amateur data network as petitioners here. [00:39:45] Speaker 00: So that's always been shared between the few things, but I think that's generally correct. [00:39:51] Speaker 02: So that might move this question, but how much jeopardy is that remaining 30 megahertz in [00:40:00] Speaker 02: in the future, if it's the only thing standing between what would otherwise be a very, very kind of uninterrupted spectrum for unlicensed use. [00:40:13] Speaker 00: I guess there's maybe two things that you might mean by jeopardy, your honor. [00:40:17] Speaker 00: One is kind of just an interference question, and the commission here put in place ample interference protections to ensure that that would not suffer harmful interference from unlicensed use in adjacent bands. [00:40:32] Speaker 00: And then, you know, if you're asking about whether the commission might [00:40:38] Speaker 00: ever consider trying to reallocate this 30 megahertz. [00:40:42] Speaker 00: There's nothing on the horizon for that if anything I think what you'll see in this order is the commission embraced the importance of retaining it for vehicular communications and went out of its way to set up [00:40:54] Speaker 00: limits on adjacent use I mean for instance you'll see that the power level restrictions that we impose them wireless devices are less than what wireless interests wanted they wanted to be able to operate at higher power levels, and the commission said no. [00:41:09] Speaker 00: We are serious about retaining the spectrum for vehicular use and protecting it. [00:41:14] Speaker 00: We do value the features that are being provided, those 30 megahertz. [00:41:18] Speaker 00: So I don't think there's any reason to think that that spectrum is jeopardized given the commission's actions here. [00:41:25] Speaker 00: That's helpful, thanks. [00:41:26] Speaker 00: If there are no further questions from the court, then we simply ask that you deny the petitions of review and affirm the commission's order. [00:41:34] Speaker 00: Thank you. [00:41:35] Speaker 03: Thank you, Mr Novak just want the record to reflect that Mr leach is here from the Justice Department he's here I take it in response to the order of the court to help us to understand why the Department of Justice, wrote the brief. [00:41:55] Speaker 03: not the FCC, and what were to take from that, given that the Department of Transportation would ordinarily be represented by the Justice Department and the FCC by itself. [00:42:08] Speaker 03: Does anybody have questions for Mr. Leach before we proceed to rebuttal? [00:42:14] Speaker 09: I thought his letter made clear [00:42:21] Speaker 03: All right, we appreciate your being here, Mr. Leach, the courtesy that that shows to the court in case we did have follow up questions on the on the issue identified in the order. [00:42:33] Speaker 03: So we'll proceed to hear from briefly from Mr. Turner and then even more briefly from Mr. Gaiman in robust. [00:42:43] Speaker 01: So thank you, Judge Pollard. [00:42:44] Speaker 01: I just wanted to hit one point. [00:42:47] Speaker 01: You mentioned regulatory certainty and isn't regulatory certainty important? [00:42:51] Speaker 01: And it absolutely is. [00:42:52] Speaker 01: And one thing that the Commission has not talked about, and they sort of don't talk about at all, is that the Commission itself played a huge role in making sure that these deployments didn't happen. [00:43:00] Speaker 01: And as we mentioned in our brief, in 2018, two commissioners sent a letter to the Toyota Motor Company saying, [00:43:06] Speaker 01: Hey, we understand that you're about to deploy DSRC radios in your 2021 model year cars. [00:43:11] Speaker 01: We want you to be aware that that spectrum may go away. [00:43:15] Speaker 01: And Toyota received that message and did not deploy those radios in its car. [00:43:19] Speaker 01: And so I think it's important to understand that when the commission says, hey, there's no evidence of commercial deployment, current commercial deployment, that's the language that they use in the order. [00:43:28] Speaker 01: What they're saying is our efforts to make sure that deployment didn't happen prior to this order taking effect were effective. [00:43:35] Speaker 01: and Toyota got the message and didn't deploy the radios that it was otherwise planning to deploy. [00:43:40] Speaker 03: The example that you use is of DSRC. [00:43:44] Speaker 03: You're not objecting to the shift away from DSRC, but you're using that in a more illustrative way that if there's a signaling back and forth when the commission says we're going to be stingy about something, then the industry is going to be prompted not to do the very development that the FCC would need. [00:44:03] Speaker 01: Correct. [00:44:04] Speaker 01: And if your honors haven't had a chance to read that letter, that's J579, I would urge you to do so. [00:44:08] Speaker 01: It's pretty brief, but it's kind of a striking illustration of what we're talking about. [00:44:12] Speaker 01: Because yes, it's illustrative of industry receiving the message from the commission that the spectrum is in jeopardy and not wanting to devote precious time and resources to deploy spectrum or to deploy technologies that they're not going to be able to use. [00:44:28] Speaker 03: But we don't have a similar letter. [00:44:29] Speaker 03: I understand at the general level that that's an example. [00:44:34] Speaker 03: But we don't have such a back and forth about taking away the 45 megahertz of the spectrum. [00:44:40] Speaker 03: That's an analogy you're making about the DSRC, to which I understand Mr. Gaiman objects. [00:44:47] Speaker 03: But I understand you're not objecting. [00:44:48] Speaker 01: Well, no, Your Honor. [00:44:49] Speaker 01: I want to be clear about this. [00:44:51] Speaker 01: Because what the FCC says is that this spectrum, and Mr. Novick said this in his presentation, [00:44:58] Speaker 01: He said, one of the reasons that we don't believe that the additional 45 MHz is necessary is because we don't trust what the Department of Transportation is telling us. [00:45:07] Speaker 01: We don't trust what the transportation sector is telling us because they haven't deployed even DSRC, even the basic safety message in any commercial deployments to date. [00:45:16] Speaker 01: Now that ignores, as I already said, that there are tens of thousands of these things out there that have been deployed by my clients. [00:45:23] Speaker 01: But it also ignores that the reason that there were no commercial deployments is in part because the commission was very clear that it didn't want those commercial deployments to proceed. [00:45:34] Speaker 01: And so it's a two-fold thing. [00:45:37] Speaker 01: Yes, it's about regulatory certainty. [00:45:39] Speaker 01: And there has been plenty of other regulatory uncertainty in this proceeding, not just the Toyota letter. [00:45:44] Speaker 01: There was the testing program that the commission walked away from. [00:45:47] Speaker 01: The commission had this program to decide whether or not it was possible to share these. [00:45:51] Speaker 01: resources that was going pretty well, but the commission decided, no, we weren't going to. [00:45:57] Speaker 03: We're familiar with the record and I'm sorry to cut you off some of your time with questioning, but unless my colleagues have questions. [00:46:04] Speaker 01: Well, Your Honor, if I could address the point that Judge Walker made about surplusage. [00:46:10] Speaker 01: He asked me to look in the brief. [00:46:11] Speaker 01: Yes. [00:46:12] Speaker 01: Yeah. [00:46:13] Speaker 01: So I just wanted to point out in page 37 of our brief, we say the commission seeks to read this provision out of the statute violating an elementary canon of construction, talking about the duty to consider in consultation with secretary spectrum needs. [00:46:27] Speaker 01: We didn't lay that argument out fully in our opening brief because it wasn't until the commission's brief that we saw the commission say, oh, well, we did consult. [00:46:36] Speaker 01: And it was only once we had them saying, oh, no, no, no, actually, we did consult, you know, and sort of pointing to the key to a case and saying that's a consultation case. [00:46:44] Speaker 01: You know, I mean, they know how to make the consultation argument. [00:46:48] Speaker 01: It was only once we had that argument in their brief that we had to respond to it in the way that we did in our reply. [00:46:53] Speaker 01: So I think we've preserved that argument because we were the ones who first raised the idea that they had ignored that duty in the statute. [00:47:04] Speaker 03: Thank you. [00:47:04] Speaker 03: All right, Mr. Gaiman, we'll hear briefly from you. [00:47:26] Speaker 03: Can the court clerk help Mr. Gaiman? [00:47:28] Speaker 03: He's having trouble unmuting. [00:47:29] Speaker 03: I don't know if that's all within his consent. [00:47:33] Speaker 05: I have something for gaming requests on you, Mr. Game and there should be a box on your screen. [00:47:43] Speaker 06: If you could just click OK or accept. [00:48:04] Speaker 06: I believe Mr. Gimmon is probably switching to his phone audio. [00:48:15] Speaker 03: I have nothing further. [00:48:17] Speaker 03: All right. [00:48:18] Speaker 03: Thank you for your ingenuity in communicating with us. [00:48:23] Speaker 03: And we appreciate the arguments of all counsel. [00:48:27] Speaker 03: The case is taken under advisement.