FCC Urges Dismissal of Petition Challenging RF Equipment Testing Rules

Incorporation by reference “is a longstanding practice that allows an agency to refer, in the text of a published rule, to material available elsewhere instead of republishing that material in the rule itself,” the FCC’s respondent brief said. It was filed Monday (docket 23-1311) in the U.S. Appeals Court for the D.C. Circuit. It opposes the petition for review challenging the agency's RF equipment testing order.

Petitioners iFixit, Public Resource and Make Community allege the FCC violated the Administrative Procedure Act when it amended rules incorporating four new equipment testing standards, and did so without the proper notice and comment protocol (see 2403280002). Their petition asks the D.C. Circuit to remand the rules to the FCC for what they contend should be a proper rulemaking (see 2311090002).

But in seeking review, the petitioners don’t address the suitability of updating the standards, said the FCC’s brief. They instead contend that by incorporating the standards in the rules by reference to their availability elsewhere, the commission violated the notice-and-comment requirements of the APA, and undermined the public interest in making law available to the public, it said.

But the D.C. Circuit lacks jurisdiction over the petitioners’ contentions because they lack standing to challenge the FCC’s order, said the brief. The petitioners aren’t labs engaged in the testing of RF-emitting equipment, and they haven’t identified any interest that would be affected by the rules proposed and adopted by the commission, it said. At best, the petitioners have “a purely academic concern” with the practice of incorporation by reference, it said. That “abstract” concern can’t establish the injury-in-fact required for standing, it said.

The petitioners’ challenge fails even if the D.C. Circuit “were to reach the merits of their arguments,” said the brief. The FCC provided the public sufficient notice and an opportunity to comment in the rulemaking “by describing the standards that it proposed to incorporate in its rules, discussing its reasons for incorporating the standards, and explaining how interested parties could access the standards,” it said.

The FCC also complied with the law governing incorporation by reference by ensuring that the standards were reasonably available to the class of persons affected, said the brief. That’s “all that the law requires,” it said. The petition for review should be dismissed, it said. The petitioners’ challenge also fails on the merits, it said.