FCC is Asked About Antenna Power, Notices at OTARD Hearing

Judges raised many questions about practical effects of the FCC's January changes to over-the-air reception devices (OTARD) rules, at oral argument Tuesday in the U.S. Court of Appeals for the D.C. Circuit. The court heard Children’s Health Defense (CHD) and four individuals’ challenge of FCC amendments that appellants said could lead to large-scale deployment of carrier equipment in residential areas despite alleged local harms (see 2110140031). Since the commission's goal was to reduce deployment barriers, said Judge Patricia Millett, “it seems to me the FCC itself anticipated that this was going to produce substantial proliferation of these antennas.”

Millett asked if there's a “substantial risk” that companies will deploy near homes of two of the challenging individuals who had covenants restricting installation of antennas primarily for commercial use. CHD attorney Scott McCollough said there is because the FCC’s amendment preempts such property limits. McCollough said his clients have debilitating RF-related conditions and “could die” if facilities authorized by the OTARD rule changes are installed near them: No notice would be required. “The Communications Act does not grant the FCC the power to issue a license to kill,” he said.

Judge Raymond Randolph said he can’t find anything in OTARD rules that would preempt notices by homeowners’ associations or local or state governments. McCullough said the FCC preempted some local laws requiring notice under old rules because it said they unreasonably impeded and delayed installation. Randolph asked, “What’s that got to do with the amendment that you’re attacking?” By changing the rule to allow commercial activity as a primary use of OTARD equipment, rather than just for customer usage, the new rules allow more powerful equipment that affects many more people, the CHD lawyer said. Before the change, they would have received notice under local zoning code or be protected by a restrictive covenant, he said: “All of that local protection goes away.”

Randolph later asked FCC attorney William Scher if it’s true that an antenna erected under the amended rule could be erected without notice. The judge noted that when a homeowners’ association “gets wind of a tower going up, even though that association has no authority to approve or disapprove the tower, they can take action by mobilizing people” and asking whoever has authority to stop the project: “How are they going to know … that there is a tower that’s going up?”

Scher said the FCC previously said prior-approval requirements, including notice to communities before erecting antennas or towers, cause unreasonable delay. Millett jumped in, asking the FCC lawyer to repeat that “prior notice is prohibitive.” With safety exceptions, clarified Scher, noting it’s not a change from the previous rule. “Yeah,” replied Millett, “but the volume of these things that are going to be put up and the power that they’re using are going to expand enormously.” Before, customers with homeowner restrictions against commercial uses could prevent antennas, she said: now they can’t stop them and don’t get notice.

Judge Gregory Katsas asked about antennas’ likely strength. He said McCollough “makes at least a plausible argument that when you move from an antenna that’s primarily receiving for use on site by the building owner to” antennas “that are primarily transmitting and incidentally used for local use, the new antennas will likely be much stronger.” The FCC attorney said the amendments didn’t address power; they left alone size restrictions and requirements that equipment be used by customers to receive service. No record evidence indicates that increases in antenna power will be big, he said.

But people could be surrounded by more antennas, said Millett, asking if RF exposure would increase as antennas multiplied in an area. “The amount of exposure varies according to power,” frequency, proximity and the equipment, Scher said. Millett pressed, “If I have a circle of these antennas surrounding me, all operating simultaneously at an unlicensed level, I am not exposed to any more radio frequency than if there was just one?” Scher at first replied, “I don’t want to answer that.” When Millett pressed again, Scher answered, “Possibly, but it would have to be within the limits.”

Millett asked how someone would determine, without notice, if RF exposure had increased and if it was still within federal limits. The FCC lawyer said companies have responsibility before installation to ensure RF levels stay within limits and would consider other devices in the area.

Randolph said 15 devices transmitting waves at a certain level “doesn’t mean that it’s 15 times louder than it would be if only one of them is transmitting.” The judge asked Scher if the rules give communities a chance to consider aesthetics. They prohibit unreasonable restrictions but leave room for aesthetic requirements that don’t significantly increase cost, said Scher: Homeowners could go to a local zoning authority to ask to remove an ugly device outside their dwelling.

Millett voiced surprise that the FCC attorney would say local authorities retain authority to remove antennas because they’re ugly. “That’s a very important concession if that’s what you’re saying. Could it be … ordered removed by a local board without any preemption … because of aesthetics, not safety?” Scher replied, “No, I think not.” When Millett expressed dissatisfaction, the lawyer noted his time to testify was up.

The judges "appeared to see through the FCC's efforts to minimize the massive impact this rule has," emailed Dafna Tachover, who until recently led CHD's 5G program: They "asked good questions including several regarding the increase in RF exposure, property and due process rights," which led "the FCC to reluctantly admit that no notice of installation of these antennas is required."