[Federal Register Volume 89, Number 69 (Tuesday, April 9, 2024)]
[Notices]
[Pages 24835-24840]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-07428]


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FEDERAL COMMUNICATIONS COMMISSION

[ET Docket No. 19-138; FR ID 212490]


Use of the 5.850-5.925 Band

AGENCY: Federal Communications Commission.

ACTION: Notice.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission) rejects a Petition for Reconsideration and a Petition for 
Partial Reconsideration of the First Report and Order filed by the 
Alliance for Automotive Innovation (Auto Innovators) and the 5G 
Automotive Association (5GAA), respectively. In the First Report and 
Order, the Commission repurposed the 5.850-5.895 GHz portion of the 
5.850-5.925 GHz (5.9 GHz) band (lower 45 megahertz) from intelligent 
transportation system (ITS)

[[Page 24836]]

use to provide more flexible unlicensed use, while continuing to 
dedicate the 5.895-5.925 GHz portion of the 5.9 GHz band (upper 30 
megahertz) for vital ITS applications. It also adopted technical and 
operating rules to minimize the potential for unlicensed operations in 
the lower 45 megahertz to cause harmful interference to incumbent 5.9 
GHz band services--including federal incumbents and ITS operations. 
Auto Innovators, through its petition, sought reconsideration of the 
Commission's decision to redesignate the lower 45 megahertz for 
unlicensed use. 5GAA, through its petition, sought reconsideration of 
the unlicensed device out-of-band emissions (OOBE) limits into the 
upper 30 megahertz retained for ITS operations. For the reasons 
discussed below, the Commission denied the petitions and affirmed the 
Commission's decision to repurpose spectrum previously designated for 
ITS services to provide more flexibility for unlicensed device uses to 
help meet the burgeoning demand for wireless broadband in the United 
States.

FOR FURTHER INFORMATION CONTACT: Howard Griboff, Office of Engineering 
and Technology, (202) 418-0657 or Howard [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order 
on Reconsideration--Use of the 5.850-5.925 GHz Band, ET Docket No. 19-
138; FCC 24-32, adopted March 15, 2024, and released March 18, 2024. 
The full text of this document is available at: https://www.fcc.gov/document/fcc-affirms-repurposing-59-ghz-band-between-wi-fi-and-auto-safety. The full text of this document is also available for public 
inspection and copying during regular business hours in the FCC 
Reference Center, 45 L Street NE, Washington, DC 20554. Alternative 
formats are available for people with disabilities (Braille, large 
print, electronic files, audio format) by sending an email to 
[email protected] or calling the Commission's Consumer and Governmental 
Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

Procedural Matters

    Regulatory Flexibility Act Analysis. In this present Order on 
Reconsideration, the Commission promulgates no additional final rules. 
Our present action is, therefore, not an RFA matter.
    Paperwork Reduction Act. This Order on Reconsideration does not 
contain any new or modified information collection requirements subject 
to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. Thus, 
it does not contain any new or modified information collection burden 
for small business concerns with fewer than 25 employees, pursuant to 
the Small Business Paperwork Relief Act of 2002, Public Law 107-198, 
see 44 U.S.C. 3506 (c)(4).
    Congressional Review Act. The Commission will not send a copy of 
this Order on Reconsideration to Congress and the Government 
Accountability Office pursuant to the Congressional Review Act, see 5 
U.S.C. 801(a)(1)(A), because no rule was adopted or amended.

Synopsis

Background

    In 1999, in consultation with the Department of Transportation 
(DOT), the Commission designated 75 megahertz of spectrum in the 5.9 
GHz band for Dedicated Short Range Communications (DSRC) systems in the 
ITS radio service, setting forth the rules and protocols for the radio 
systems designed to enable transportation and vehicle safety-related 
communications. A subsequent order in 2003 established licensing and 
service rules for DSRC operations. Under the adopted service rules, 
DSRC licensees shared the 5.9 GHz band with several other services, 
including amateur radio service and fixed-satellite service (for 
uplinks) as well as with federal radiolocation service (radar) systems. 
When the Commission designated the 5.9 GHz band for ITS, it was 
expected that the band would support widespread deployment of systems 
that would improve efficiency and promote safety within the nation's 
transportation infrastructure. However, in the time since the 
Commission designated the 5.9 GHz band for ITS service, DSRC deployment 
was minimal. Many automotive safety functions originally contemplated 
for the 5.9 GHz band over 20 years ago--such as alerting drivers to 
vehicles or other objects, lane-merging alerts, and emergency braking--
are being met in other spectrum bands (e.g., 76-81 GHz) or by other 
technologies like radar, light detection and ranging (LiDAR), cameras, 
and other sensors.
    Given the technological shift for delivering automotive safety 
functions and the public interest benefits that would be gained by 
repurposing spectrum lying fallow, the Commission adopted the First 
Report and Order, wherein it removed the lower 45 megahertz from ITS 
use and adopted rules expanding unlicensed national information 
infrastructure (U-NII) operations such as Wi-Fi into that spectrum. The 
Commission made this decision partially because the DSRC services once 
contemplated for the 5.9 GHz band had not come to fruition in the 20 
years since it allocated the spectrum for the ITS service. It concluded 
that rather than reserving the entire 75 megahertz of the 5.9 GHz band 
for vehicle-safety features that can be or are already being provided 
using other spectrum bands or alternative technology, 30 megahertz 
would be sufficient for ITS licensees to effectively use the spectrum 
for vehicle safety-related applications. The Commission found 
unconvincing claims about future plans for advanced DSRC-based ITS 
services and indicated that the future ITS services were too uncertain 
or remote to justify retaining the full 75 megahertz of the 5.9 GHz for 
ITS. Accordingly, the Commission concluded that reserving the entire 
5.9 GHz band for possible additional ITS services would not be the most 
efficient or effective use of that band, nor in the public interest to 
continue to do so.
    The Commission determined that its action modifying all existing 
ITS authorizations to transition such operations to only the upper 30 
megahertz was well within the Commission's statutory authority under 47 
U.S.C. 316, section 316 of the Communications Act of 1934, as amended, 
consistent with prior Commission practice, and furthers the promotion 
of the public interest, convenience, and necessity. The Commission 
found that this modification was manifestly in the public interest 
because it would make room for additional valuable unlicensed use in 
the lower 45 megahertz of the band, while allowing existing ITS 
operations sufficient spectrum to continue to provide substantially the 
same basic vehicular safety services. The Commission also found that 
its decision to repurpose the lower 45 megahertz to provide more 
flexible unlicensed use was not in conflict with any role assigned to 
it by Congress.
    In making the lower 45 megahertz available for more flexible 
unlicensed use, the Commission found that, when added to U-NII spectrum 
in the adjacent 5.725-5.850 GHz (denoted as U-NII-3) band, the 45 
megahertz of spectrum from the 5.850-5.895 GHz (denoted as U-NII-4) 
band would provide for increased high-throughput broadband applications 
in spectrum that is a core component of today's unlicensed ecosystem, 
thereby providing the American public with the most efficient and 
effective use of this valuable mid band spectrum. At the same time, the 
Commission recognized the importance of maintaining some spectrum to

[[Page 24837]]

support ITS applications, even though DSRC had sparsely been deployed 
and failed to become ubiquitously used for the broad range of traffic 
safety applications that were originally anticipated in the 5.9 GHz 
band. The Commission designated the upper 30 megahertz to improve 
automotive safety through ITS applications, and required that, within 
one year of the effective date of the First Report and Order, ITS 
licensees must cease operations on channels in the lower 45 megahertz 
and move to channels in the upper 30 megahertz. To help enhance the 
roll-out of ITS services and promote the most efficient and effective 
use of this ITS spectrum, the Commission updated the associated service 
rules for vehicular communications in the upper 30 megahertz to 
transition from the original DSRC protocol adopted in 1999 to a 
wireless technology-based protocol known as Cellular Vehicle-To-
Everything (C-V2X), at the end of a transition period to be determined 
through the record generated by the FNPRM in this proceeding.
    To protect incumbent 5.9 GHz band services, including federal 
incumbents and ITS operations, from potential harmful interference by 
unlicensed operations, the Commission imposed stringent power limits 
and operating requirements on unlicensed devices (i.e., access points, 
subordinate devices, and client devices) operating in the lower 45 
megahertz, restricting unlicensed use of the lower 45 megahertz to 
indoor locations. In addition, to protect the ITS operations during and 
after their transition to the upper 30 megahertz, the Commission set 
OOBE limits allowed in the upper 30 megahertz for indoor unlicensed 
operations in the lower 45 megahertz based on, but not identical to, 
the previously-affirmed OOBE limits for unlicensed operations in the 
5.725-5.850 GHz (U-NII-3) band. Since the Commission restricted 
unlicensed use of the lower 45 megahertz to indoor use only, the 
Commission took advantage of building attenuation, as well as other 
factors such as path loss, to increase the OOBE limits allowed in the 
upper 30 megahertz from the indoor unlicensed operations by an 
additional 20 dB as compared to the 5.725-5.850 GHz (U-NII-3) band OOBE 
limits. The Commission found these OOBE limits from indoor unlicensed 
operations mirror the OOBE limits for unlicensed operations in the 
5.725-5.850 GHz (U-NII-3) band after accounting for building 
attenuation. The Commission also permitted a root mean square (RMS) 
detector, instead of requiring a peak detector, to be used to conduct 
all 5.9 GHz band unlicensed device OOBE measurements. The Commission 
found that RMS measurement is more appropriate for ensuring that the 
potential for U-NII devices to cause harmful interference to adjacent-
band operations is minimized because RMS measurements represent the 
continuous power being generated from a device, as opposed to peak 
power, which may only be reached occasionally and for short periods of 
time.

Discussion

    In response to the First Report and Order, Auto Innovators and 5GAA 
filed petitions for reconsideration on June 2, 2021. 86 FR 37982 (July 
19, 2021) (corrected notice). In its Petition for Reconsideration, Auto 
Innovators asks the Commission to reconsider its designation of the 
lower 45 megahertz for unlicensed uses and restore that portion of the 
5.9 GHz band for ITS. In its Petition for Partial Reconsideration, 5GAA 
asks the Commission to reduce the OOBE limits permitted in the upper 30 
megahertz designated for ITS services from indoor unlicensed access 
points, subordinate devices, and client devices operating in the lower 
45 megahertz. The Petitions for Reconsideration were collectively 
denied in this Order on Reconsideration.
    While the reconsideration process remained pending, the Intelligent 
Transportation Society of America (ITS America) and the American 
Association of State Highway and Transportation Officials (AASHTO) 
petitioned the United States Court of Appeals for the D.C. Circuit to 
vacate the part of the First Report and Order repurposing the lower 45 
megahertz for unlicensed operations. The Amateur Radio Emergency Data 
Network (AREDN) filed a separate petition asking the court to vacate 
the entire First Report and Order. As discussed below, many of the 
arguments presented by the reconsiderations petitioners overlap with 
the court petitioners' arguments. In ITS America v. FCC, the D.C. 
Circuit rejected each of those arguments and affirmed the Commission's 
decisions in the First Report and Order. 45 F.4th 406 (D.C. Cir. 2022).

Redesignation of the 5.850-5.895 Band for Unlicensed Use

    In its Petition for Reconsideration, Auto Innovators asks the 
Commission to reconsider its decision to redesignate the lower 45 
megahertz for unlicensed uses and to restore the lower 45 megahertz 
block to the ITS service. Auto Innovators contends the Commission 
exceeded its legal authority in issuing the First Report and Order 
``over the objection of DOT [the Department of Transportation] . . . , 
particularly in light of Congress's grant of authority to DOT to 
administer a nationwide ITS program.'' Auto Innovators argues in the 
alternative that the First Report and Order merits reconsideration 
because the DOT and Congressional interests under the Biden 
Administration continue to express support for maintaining the entire 
5.9 GHz band for automotive safety applications, as they did under the 
previous administration. Auto Innovators also claims that the entire 75 
megahertz of the 5.9 GHz band is needed to facilitate the future of 
transportation (e.g., automated driving, 5G technologies, advanced 
vehicle to everything (V2X) applications).
    In ITS America v. FCC, the D.C. Circuit considered each of these 
arguments in upholding the Commission's First Report and Order. First, 
the court rejected the arguments that the Commission exceeded its legal 
authority by repurposing the lower 45 megahertz for unlicensed use. The 
court recognized that allocating spectrum among competing needs ``is a 
difficult, highly technical task,'' that ``figuring out how much of the 
spectrum is needed to support a particular activity is exactly what the 
FCC does,'' and that ``the FCC is entitled to great deference when 
predicting the likelihood of [future] developments.'' As the court 
explained, the 1998 Transportation Equity Act for the 21st Century, 
Public Law 105-178, 112 Stat. 107, ``did not transfer away from the FCC 
its broad authority to manage the spectrum related to [ITS],'' but 
instead ``simply required the FCC to account for the [DOT]'s views and 
the needs of [ITS] when it does so,'' which is what the Commission did.
    Second, the court rejected the argument that the change in 
administration requires the Commission to revisit its decision. 
Specifically, the court stated that ``the Department of 
Transportation's concerns with the FCC's order are no longer espoused 
by the Executive Branch'' and in fact, ``through the Department of 
Justice, the Executive Branch--which of course includes the Department 
of Transportation--joined the FCC's brief defending the FCC's order.'' 
Finally, the court also upheld the Commission's conclusion that 
retaining the upper 30 megahertz for ITS will be adequate to serve 
transportation safety needs. It agreed with the Commission that ``other 
[non-5.9 GHz] technologies have alleviated the need for all 75 
megahertz of the [5.9 GHz band] to remain dedicated to [ITS].'' In 
addition, the

[[Page 24838]]

court refused to require the Commission to hold additional spectrum in 
reserve for ``yet-to-arrive technologies'' that the Commission found 
``too uncertain and remote to warrant the further reservation of 
spectrum.'' The Commission affirms its decision to repurpose the lower 
45 megahertz for the reasons discussed in the First Report and Order, 
including the cost-benefit analysis therein, because nothing in the 
petition by Auto Innovators persuades us otherwise. Moreover, the D.C. 
Circuit Court's decision makes clear that the decision to repurpose 
that spectrum was well within the Commission's authority.

Out-of-Band Emissions Limits Permitted in the 5.895-5.925 GHz Band From 
Unlicensed Operations in the 5.850-5.895 GHz Band

    In its Petition for Partial Reconsideration, 5GAA asks the 
Commission to reconsider ``the unwanted emission limits permitted from 
new indoor unlicensed access points and client devices operating in the 
[lower 45 megahertz]'' to better protect ITS operations in the upper 30 
megahertz. Specifically, 5GAA asks the Commission to protect ITS 
operating in the upper 30 megahertz by ``afford[ing] C-V2X an 
additional 20 dB of protection from these [5.850-5.895 GHz] U-NII-4 
emissions.'' 5GAA objects to the Commission's decision to base the OOBE 
limits for unlicensed devices operating in the 5.850-5.895 GHz (U-NII-
4) band on the existing OOBE limits for unlicensed devices in the 
5.725-5.850 GHz (U-NII-3) band, as ``the technical realities of [5.850-
5.895 GHz] U-NII-4 operations necessitate greater protection levels 
than afforded from [5.725-5.850 GHz] U-NII-3 operations.'' 5GAA rejects 
the Commission's assumption of 20 dB building attenuation loss for all 
indoor access points, contending that ``[w]hile many unlicensed access 
points will experience some building attenuation loss, a 20 dB loss 
cannot be assumed in every instance.'' Further, 5GAA claims the 
Commission's choice of RMS measurement, rather than peak measurement, 
results in an additional 10-20 dB of unwanted emissions into the C-V2X 
frequencies. 5GAA concludes that, combined, these decisions permit an 
unwanted emission limit into the upper 30 megahertz that is 30-40 dB 
more relaxed than the 5.725-5.850 GHz (U-NII-3) band limit. 5GAA 
asserts that its suggestion to reduce the allowed 5.850-5.895 GHz (U-
NII-4) band OOBE limits by 20 dB ``would provide necessary protection 
for critical safety services'' in the upper 30 megahertz, while ``still 
provid[ing] for robust indoor unlicensed operations.''
    5GAA also contends that the Commission's choice of acceptable 
5.850-5.895 GHz (U-NII-4) band OOBE limits based on the existing OOBE 
limits for unlicensed devices in the 5.725-5.850 GHz (U-NII-3) band is 
arbitrary and capricious as it fails to satisfy the Administrative 
Procedure Act (5 U.S.C. 551-559) obligation to fully consider the 
relevant facts underlying its assumptions and articulate a reasoned 
explanation to support its decision. 5GAA argues that C-V2X will have a 
``much more robust deployment'' than the ``thinly deployed'' DSRC, 
while the ``heavy use of the [5.850-5.895 GHz] U-NII-4 band will result 
in longer sustained periods of interference'' to the upper 30 
megahertz. Therefore, 5GAA claims that the more extensive C-V2X 
operations warrant greater protections than those provided from 5.725-
5.850 GHz (U-NII-3) band operations. 5GAA also contends that the 
Commission's choice of the RMS measurement standard is arbitrary and 
capricious because the First Report and Order offers ``no meaningful 
analysis of whether C-V2X operations will be able to tolerate the 
additional unwanted emissions that the RMS measurement approach will 
permit.'' 5GAA further states that the Commission does not explain why 
the RMS measurement technique approved to evaluate the indoor 
unlicensed operations' OOBE levels ``is more suitable for assessing the 
impact of unwanted emissions on C-V2X services'' than the peak 
measurement approach.
    In its Petition, 5GAA incorporates by reference a study submitted 
with its comments on the FNPRM, referred to here as ``5GAA's 
Coexistence Analysis.'' 5GAA claims this study demonstrates the 
Commission's OOBE limits adopted in the First Report and Order are 
detrimental to C-V2X, i.e., that the adopted OOBE levels for unlicensed 
operations ``significantly reduce C-V2X's communications range by more 
than 50% when compared against 5GAA's preferred approach.'' 5GAA argues 
that ``permitting excessive unwanted emissions could raise concerns 
about the viability of safety services in the [upper 30 megahertz], 
delaying or even denying the network effects policymakers and 
transportation stakeholders hope and expect to achieve.''
    5GAA's Coexistence Analysis does not convince us to reconsider the 
OOBE limits decision for indoor unlicensed operations adopted in the 
First Report and Order. First, 5GAA's Coexistence Analysis assumes an 
average activity factor (also known as duty cycle) of 2 percent for the 
percentage of time when an individual indoor unlicensed device is 
transmitting in the lower 45 megahertz, i.e., adjacent to the lower 
edge of the upper 30 megahertz. In contrast, in the 6 GHz First Report 
and Order (89 FR 874) (expanding unlicensed operations in 6 GHz U-NII 
bands, i.e., adjacent to the upper edge of the upper 30 megahertz), the 
Commission assessed the potential for Low Power Indoor unlicensed 
devices operating in the 6 GHz U-NII bands to cause harmful 
interference and determined that the appropriate activity factor per 
unlicensed device is only 0.4%. That activity factor was based on 
measurement data for 5 GHz U-NII routers. Therefore, unlicensed 5.850-
5.895 GHz (U-NII-4) band devices operating in the lower 45 megahertz 
can be assumed to operate with that same activity factor in determining 
5.850-5.895 GHz (U-NII-4) devices' potential to cause harmful 
interference to ITS operations in the upper 30 megahertz. Thus, 5GAA's 
assumption leads to approximately 7 dB over-estimation in the average 
duty cycle power per unlicensed device's transmissions over time.
    Second, 5GAA's Coexistence Analysis uses a relatively low 20 dBm 
(100 mW) on-board unit (OBU) transmit power, where under our current 
rules, it could have used a higher OBU transmit power limit as 
currently permitted in the 47 CFR 95.3189 OBU technical standards. 
Section 95.3189 (47 CFR 95.3189) currently requires compliance with the 
Institute of Electrical and Electronics Engineers (IEEE) 802.11p-2010 
standard: Amendment 6: Wireless Access in Vehicular Environments. Under 
the IEEE standard, OBUs operated by entities other than state and local 
governments are allowed up to 33 dBm EIRP, i.e., 20 times as strong as 
5GAA used in the Coexistence Study. By using 20 dBm in its analysis, 
5GAA artificially sets the OBU EIRP at a level that significantly 
increases the potential for 5.850-5.895 GHz (U-NII-4) band OOBE to 
cause harmful interference to ITS operations in the upper 30 megahertz.
    5GAA's claims that while ``there may be 20 dB [of building] 
attenuation in some cases, [ ] there exist other situations where very 
little attenuation would lead to harmful interference to C-V2X 
operations'' do not persuade us to reconsider the OOBE limits adopted 
in the First Report and Order. 5GAA concedes that 20 dB of building 
attenuation as compared to the 5.725-5.850 GHz (U-NII-3) OOBE limits is 
appropriate ``in some cases.'' 5GAA

[[Page 24839]]

does not take into account other factors the Commission considered that 
would accommodate cases with less building attenuation, such as the 
path loss due to the separation distance between indoor unlicensed 
devices and C-V2X receivers. 5GAA's Coexistence Analysis also fails to 
adequately consider the reduction in antenna gain caused by the 
directionality of C-V2X receiving antennas. 5GAA assumes the randomness 
of peaks and nulls in the real antenna gain patterns of both unlicensed 
devices and C-V2X devices to have a zero dB average. However, C-V2X 
antennas are typically horizontal in nature in front of and behind 
vehicles and positioned to maximize coverage along road surfaces. This 
orientation generally will provide some measure of isolation between 
unlicensed devices' transmissions and OBU receivers and help reduce 
unlicensed devices' OOBE levels received by a C-V2X device in the upper 
30 megahertz. Because the antenna patterns and coverage requirements 
differ between unlicensed and C-V2X operations, the assumption of a 
zero dB average gain is incorrect. C-V2X transmissions received by an 
OBU from other OBUs is more likely to occur in or near the main lobe of 
the OBU receiving antenna, which will result in a higher average gain 
for the reception of C-V2X transmissions than the zero dB average 
assumed in 5GAA's Coexistence Analysis. In sum, building attenuation, 
coupled with attenuation due to path loss and the C-V2X OBU receiving 
antenna angular discrimination, sufficiently support the Commission's 
decision that its adopted 5.850-5.895 GHz (U-NII-4) band OOBE limits 
that fall in the upper 30 megahertz will not cause harmful interference 
to C-V2X operations.
    5GAA notes that in Revision of Part 15 of the Commission's Rules to 
Permit Unlicensed National Information Infrastructure (U-NII) Devices 
in the 5 GHz Band, Memorandum Opinion and Order, 81 FR 19896 (2016), 
the Commission adopted relaxed OOBE limits for 5.725-5.850 GHz (U-NII-
3) band (which form the basis of the 5.850-5.895 GHz (U-NII-4) band 
OOBE limits adopted in the First Report and Order) to accommodate 
unlicensed fixed point-to-point antennas in that band; since 5.850-
5.895 GHz (U-NII-4) indoor unlicensed access points do not use such 
antennas, the Commission should not have established even more relaxed 
5.850-5.895 GHz (U-NII-4) band OOBE limits than those for 5.725-5.850 
GHz (U-NII-3). However, in 2016, the Commission chose to provide ``a 
single, consistent OOBE requirement for all equipment'' that operates 
in the 5.725-5.850 GHz (U-NII-3) band rather than ``apply different 
OOBE requirements based on a variety of situations.'' As such, 5GAA's 
distinction between types of unlicensed equipment in this case is 
inapplicable and thus, the Commission's decision to base OOBE limits 
for the 5.850-5.895 GHz (U-NII-4) band equipment on the OOBE limits for 
the 5.725-5.850 GHz (U-NII-3) band was appropriate.
    The Commission disagrees with 5GAA's assertion that RMS measurement 
of unlicensed devices' OOBE power, as opposed to peak measurement, 
permits more power from these OOBE in the adjacent band, resulting in 
the receipt of an additional 10-20 dB of unwanted OOBE on the C-V2X 
frequencies in the upper 30 megahertz. Measurements of infrequent 
worst-case peak OOBE of short duration are not an accurate or realistic 
assessment of the potential for a device to cause harmful interference. 
As the Commission explained in the First Report and Order, instances of 
peak OOBE power in an unlicensed device's transmitted signal only occur 
occasionally and are of limited duration; RMS measurement of OOBE will 
provide a more accurate assessment of an unlicensed device's potential 
to cause harmful interference because RMS measurements represent the 
continuous power being generated from a device.
    The Commission also disagrees with 5GAA's assertion that the 
Commission ``traditionally'' uses a peak measurement for assessing 5 
GHz U-NII OOBE. As a general rule, the Commission establishes OOBE 
measurement procedures based on the technical and operational 
characteristics of the equipment operating in the specific band under 
consideration and the design characteristics of equipment used in 
adjacent-bands. Peak measurements may be required when the Commission 
determines that peak emissions would have significant interference 
effects, as was the case for compliance testing of 5.725-5.850 GHz (U-
NII-3) band devices' unwanted emissions to protect federal terminal 
Doppler weather radars in the 5.470-5.725 GHz (denoted as U-NII-2C) 
band. In contrast, in the 6 GHz Order, the Commission adopted OOBE 
levels based on RMS measurement (as well as other appropriate 
techniques for measuring average power) to protect ITS operations in 
the 5.9 GHz band from the OOBE of unlicensed operations in the adjacent 
5.925-6.425 GHz (denoted as U-NII-5) band. Compliance testing of 5.850-
5.895 GHz (U-NII-4) band devices' unwanted emissions to protect ITS 
operations above the 5.850-5.895 GHz (U-NII-4) band is comparable to 
compliance testing of 5.925-6.425 GHz (U-NII-5) band devices' unwanted 
emissions to protect ITS operations below the 5.925-6.425 GHz (U-NII-5) 
band, and thus, RMS detection is appropriate in the case of measuring 
5.850-5.895 GHz (U-NII-4) band OOBE levels. Moreover, allowing the 
flexible RMS measurement technique will help promote shared spectrum 
technologies and drive greater productivity and efficiency in spectrum 
usage.
    Accounting for the above-noted weaknesses in 5GAA's Coexistence 
Analysis, as well as considering the restriction on unlicensed use of 
the lower 45 megahertz to indoor locations and the requirement for RMS 
measurements for analyzing the potential impact of the adopted 
unlicensed device OOBE limits, the Commission concludes that the indoor 
unlicensed device OOBE limits the Commission adopted in the First 
Report and Order will sufficiently protect C-V2X communications in the 
upper 30 megahertz from harmful interference. Consequently, the 
Commission would not expect that C-V2X operations will experience 
reduced communications range from unlicensed OOBE falling within the 
ITS band.
    In response to 5GAA's claim that the Commission's choices of 
acceptable OOBE limits and RMS measurement of OOBE levels are arbitrary 
and capricious, the Commission notes that in ITS America v. FCC, the 
U.S. Court of Appeals for the District of Columbia Circuit determined 
that the Commission was not acting arbitrarily and capriciously when it 
implemented ``restrictions on unlicensed devices using the lower 45 
megahertz--such as emissions limits and indoor-use-only rules--to keep 
those devices from interfering with intelligent transportation systems 
in the upper 30 megahertz.'' The court reiterated its inclination to 
``uphold the Commission if it makes a technical judgment that is 
supported with even a modicum of reasoned analysis, absent highly 
persuasive evidence to the contrary.'' The Commission has explained in 
detail its technical judgment that the adopted restrictions will 
minimize the potential for harmful interference to the extent 
appropriate in this context and 5GAA has not provided highly persuasive 
evidence to refute the Commission's judgment. 5GAA's argument that the 
Commission was arbitrary and capricious by not increasing OOBE 
protections of C-V2X in anticipation of possible heavier uses of both 
the lower 45 megahertz by unlicensed operations

[[Page 24840]]

and the upper 30 megahertz via C-V2X deployment is speculative and 
similarly fails. Therefore, the Commission rejects 5GAA's claim that 
the Commission's decisions regarding protecting ITS operations in the 
upper 30 megahertz from unlicensed devices' OOBE are arbitrary and 
capricious, and the Commission declines to reconsider the indoor 
unlicensed device OOBE limits adopted in the First Report and Order.

Ordering Clauses

    Accordingly, it is ordered that pursuant to 47 CFR 1.429, the 
Petition for Reconsideration filed on June 2, 2021 by Auto Innovators 
and the Petition for Partial Reconsideration filed on June 2, 2021 by 
5GAA are denied.

Federal Communications Commission.
Marlene Dortch,
Secretary.
[FR Doc. 2024-07428 Filed 4-8-24; 8:45 am]
BILLING CODE 6712-01-P