A three-judge panel of the D.C. Federal Appeals Court has rejected a challenge to the FCC's decision to amend its over-the-air reception device (OTARD) rule to remove a commercial use restriction.
One of the FCC's arguments for the change was the rise of streaming services, a point Senior Circuit Judge A. Raymond Randolph said in writing the opinion of the panel, which also included Judge Patricia Millett and Judge Gregory Katsas.
The court found that the FCC had "sufficiently explained that its Order 'does not change the applicability of the Commission’s radio frequency exposure requirements' and that such concerns were more appropriately directed at its radiofrequency rulemaking."
The FCC had argued back in oral argument last December that the restriction it scrapped, which prevented commercial antennas that could transmit and relay as well as receive, was outdated and impeded the buildout of 5G wireless service.
The FCC was unanimous in its 2019 decision to expand the definition of user in the OTARD rule, which “prohibits laws, regulations, or restrictions imposed by state or local governments or private entities that impair the ability of antenna users to install, maintain, or use over-the-air reception devices” from customer to provider.
The FCC billed the change as another of its efforts to make it easier to deploy broadband infrastructure, particularly to rural and unserved/underserved areas, and to help agency rules keep pace with changing technology, like streaming. Just as cellular sites have gotten smaller and more numerous, so do commercial hubs need to be more numerous and placed closer to customers, goes the argument.
But activist group Children’s Health Defense had sued the FCC, arguing that easing the restriction on commercial operations of antennas to allow them to be erected in communities, and without prior notice in the case of unlicensed uses, was potentially life-threatening to children and others with radio frequency exposure-related conditions. “The Communications Act does not grant the commission the power to issue a license to kill,” an attorney for the group told the court in oral argument.
The group argued that the change allows for more and more powerful antennas that pose a new health risk that communities cannot prevent through restrictive covenants. “All of that protection goes away,” it told the court.
The FCC's attorney conceded in oral argument that the change would mean lots more antennas because the old rule meant that antennas could not be primarily used as a hub, and now they could be.
One of the reasons for the change was that as technology has evolved, he said, antennas have become multipurpose devices much in the same way that a computer is now used for word processing, gaming or to watch video. He said the antennas can be used to receive, transmit and relay, so the old restriction was obsolete and “didn’t make sense.”
Randolph said that "Whatever the validity of [Children’s Health Defense] analyses, their allegations [of harm] depend on the presence, within the range of a hub or relay antenna, of an individual who is adversely affected by radiofrequency radiation. The upshot is that there necessarily will be circumstances in which the amendment of the Order will have no adverse consequences because no such individual is in the vicinity. Yet in order to succeed in their facial challenge, petitioners had to show that there are no circumstances in which amendment of the regulation would be valid."
