Expanding the availability of broadband internet service is among the hottest telecommunications policy topics of the day, especially as the federal and state governments funnel billions of dollars toward more deployment and higher speeds. Last week the D.C. Circuit upheld an FCC rule aimed at that goal, which allows commercial-grade wireless internet antennas in residential areas, a move sought by wireless internet providers.
As technology has changed over time, the FCC has adopted and amended its rules that allow antennas to be placed on private dwellings. The original 1996 regulation allowed for installation of antennas on private property to receive services like satellite and cable television, and preempted state and local restrictions. A 2004 amendment allowed such antennas to serve multiple customers in a single location, provided the antennas were not used primarily as “hubs for the distribution of service.” And in 2021, the FCC amended the rule to allow such antennas to be used as hubs for the distribution of service, paving the way for commercial-grade equipment for, among other things, wireless internet service. Children’s Health Defense (CHD) and others appealed, concerned about the health effects of such antennas on nearby residents with radiofrequency sensitivity. The court’s decision, however, deals mainly with fine legal points of rejecting CHD’s challenges. Children’s Health Defense v. FCC, No. 21-1075 (D.C. Cir. Feb. 11, 2022).
As a threshold issue, the FCC challenged the petitioners’ standing. The court, however, found there was standing because two individual members of CHD suffered from radiofrequency sensitivity and bought homes in areas with restrictive covenants on antennas. Because the FCC’s amended rule would preempt those covenants, these individuals qualified as “objects” of the FCC’s order, which give standing to them and associational standing to CHD. Slip Op. at 5.
CHD then challenged the FCC’s authority for amending the regulation. The court found 47 U.S.C. 303(d) gave authority to the FCC, as it grants the FCC power over “stations” and a prior case held that “stations” under Section 303(d) includes antennas. Id. at 6, citing Continental Airlines, 21 FCC Rcd. 13,201, 13,217 & nn.107-08 (2006).
CHD’s main argument was that the FCC’s order lacked a reasoned foundation because it disregarded the human health effects of the amended rule. This theory is in line with a similar theory raised by the same attorneys on behalf of the Environment Health Trust in challenging the FCC’s decision in its radiofrequency rulemaking (see Env’t Health Tr. v. FCC, 9 F.4th 893 (D.C. Cir. 2021)). In that instance the D.C. Circuit found the FCC had failed to properly explain its approach to concerns about the health effects of radiofrequency waves, and remanded to the FCC. In the agency proceeding at issue here, however, the FCC said that concerns about health effects should be addressed in its separate radiofrequency rulemaking (that is, the case that was remanded in 2021), and so were outside the scope of the proceeding on review. The court agreed, noting that agencies can limit the scope of their rulemakings and allocate issues to different proceedings. Slip Op. at 9.
Finally, CHD argued that the amended rule would violate the FHA and ADA. The court rejected this claim without addressing the merits. As the court explained, CHD was mounting a facial challenge to the amended rule, but its argument depended on the presence, in an area affected by a hub antenna, of someone with radiofrequency sensitivity. That situation may exist sometimes, but a facial challenge requires there be no circumstances in which the amended regulation would be valid, so CHD’s argument could not succeed. Id. at 10.