Telecom Decision ' D.C. Circuit Upholds FCC Antenna Rule Aimed At Promoting Wireless Broadband

• Published date: 18 February 2022
• Subject Matter: Media, Telecoms, IT, Entertainment, Food, Drugs, Healthcare, Life Sciences, IT and Internet, Mobile & Cable Communications
• Law Firm: Duane Morris LLP
• Author: J. Tyson Covey

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...