FCC's OTARD Order Upheld by DC Circuit Against Challenge by RF Safety Advocates
The U.S. Court of Appeals for the D.C. Circuit upheld the FCC's 2021 changes to over-the-air reception devices (OTARD) rules in a case brought by Children’s Health Defense (CHD) and four individuals. Judge Raymond Randolph said Friday the decision was a close call in the FCC’s assertion of authority over notice requirements. CHD is considering whether to seek rehearing.
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Petitioners “raise concerns about the preemption of local ordinances or contractual provisions requiring property owners to provide notice to local governments or homeowners’ associations before installing commercial-grade antennas,” Randolph wrote: “Although we uphold the Order against facial attack, we acknowledge that the Commission is treading on thin ice in asserting broad authority to preempt any notice requirements affecting antenna installations.” Judges Patricia Millett and Gregory Katsas joined the opinion.
Scott McCollough, who argued the case for petitioners in December (see 2112070051), said in an interview CHD is weighing its options and may petition the same panel for rehearing on parts of the decision. McCollough said in a partial win for his side the court said wireless customers have standing to bring the case, rejecting a claim by the FCC. CHD and the FCC didn’t comment Friday.
The January 2021 revisions could lead to “massive deployment of carrier-grade base stations and antennas in residential areas despite significant local impact, opposition and harm,” appellants said in challenging the order. They also questioned whether the FCC has legal authority to approve the revisions (see 2110140031).
“Petitioners say the Order lacks a reasoned foundation because the Commission disregarded the human health consequences of its action,” Randolph wrote. The FCC relied on its 2019 RF safety rules (see 2108130035), he said. “Ordinarily, an agency may dispose of claims by relying upon other rulemakings,” he said: “The Commission therefore properly dispensed petitioners’ health-and-autonomy-based claims by relying on its 2019 order.” The D.C. Circuit in August remanded that order for further work in August (see 2108130073), but Randolph said in a footnote the remand concerns only part of the FCC order and not parts relied on in the OTARD order.
Appellants never raised the question of the FCC’s authority to act under Section 303 of the Communications Act, Randolph said. “Petitioners contend that Section 303 cannot support the Order,” he said: “They claim that the Act erects a distinction between carrier equipment and end-user equipment -- a distinction the Order obliterates. Whatever the merits of this argument, the issue is waived.”
McCollough said the court also appeared to open the door for a challenge of the rules, as applied, based on the Americans with Disabilities Act and the Fair Housing Act. Where or how that challenge may be filed hasn't been determined, he said.
The Wireless ISP Association is “greatly encouraged” by the decision, said Louis Peraertz, vice president-policy. “WISPA started the process in 2018 by asking the agency to update OTARD, and pushed heavily for the rule, which eventually passed the Commission unanimously,” he said: “The new OTARD rule represents an important technological and marketplace change, two decades in the making.” The change “will facilitate the placement of broadband-only ‘hubs’ and ‘relay antennas’ -- pizza box-sized technology -- on homes, multi-tenant buildings and vertical structures, providing a potent tool for WISPs and other small innovators to grow broadband deployment beyond past limits imposed by the former rule,” he said.