Wednesday, February 16, 2022

FCC Rule Removing Barriers to Fixed Wireless Broadband Deployments Upheld

On Friday, in Children's Health Defense v. FCC, the D.C. Circuit upheld the FCC's 2021 OTARD Order that expanded the scope of its rule preempting restrictions on broadband Internet rooftop antennas to include all "hub and relay" antennas. Free from such unreasonable deployment barriers, fixed wireless broadband providers are better able to compete against other distribution technologies and serve the needs of consumers.

For background, the Telecommunications Act of 1996 directed the Commission to adopt rules that promote intermodal competition in the video market by preempting state, local, and covenant-based restrictions on the installation of rooftop antennas. Congress mandated this rulemaking because states, localities, multitenant building owners, and home owners' associations often banned rooftop antennas needed for "wireless cable" and satellite TV services, or at minimum saddled them with unreasonably burdensome compliance costs and other obligations.

In response, the Commission adopted its "over-the-air reception device" (OTARD) rule, which preempts regulations that "unreasonably delay or prevent installation" or "unreasonably increase the cost" of rooftop antennas smaller than 1 meter in diameter and no higher than 12 feet above the roofline. In subsequent years, the Commission has updated the OTARD rule multiple times, including expanding the scope of the rule to cover rooftop antennas used for fixed wireless broadband service.

The 2021 OTARD Order is the latest of these updates, revising the OTARD rule to conform with current technical realities of fixed wireless broadband offerings, many of which involve "mesh" networks that rely upon a greater number of smaller antennas. Pursuant to the Order, the OTARD rule now preempts regulation of all "hub" rooftop antennas used for fixed wireless broadband service that fall within the rule's dimension limits. Prior to this Order, the OTARD rule only protected hub antennas used to serve the specific location to which they were attached.

Consumers stand to benefit from the 2021 OTARD Order because it enables fixed wireless providers to deploy the equipment needed to improve and expand network performance.

The D.C. Circuit upheld the 2021 OTARD Order against multiple attacks from petitioners. First, the court rejected petitioners' claim that the FCC lacked authority to expand the OTARD rule, holding that the text of Section 303 of the Communications Act and the Commission's interpretation of this section provided authority and a reasoned basis for its Order. According to the Court, Section 303 grants the Commission authority to regulate radio "stations," which the Commission has interpreted to mean individual antennas using radiofrequency (RF) spectrum. The Order is a lawful use of this authority.

Next, the court rejected petitioners' Administrative Procedures Act challenge that the Commission failed to consider health effects from RF exposure, concluding that this issue was outside the scope of the Order and best addressed in the Commission's RF proceedings. The court reasoned that federal agencies can designate specific proceedings to address specific issues, as the Commission had done in a 2019 rulemaking on RF exposure.

The court also rejected petitioners claim that the Order facially violates the Americans with Disabilities Act (ADA) and Fair Housing Act (FHA), determining that petitioners failed to show that the Order is unlawful in every application and because their arguments again relied on the supposed health effects of RF exposure. A facial challenge to an agency order requires that the order be invalid in every instance, and since the petitioners' claims here involved specific individuals protected by the ADA and FHA, they could not meet this burden. Further, even if petitioners could meet that burden, the claims involved assertions about the health effects of RF exposure that the Commission addressed in a separate proceeding.

Lastly, the court rejected petitioners' claim that the Commission unlawfully preempted state and local law, holding that Section 303 empowers it to do so.

However, the court noted in dicta that the Commission is "treading on thin ice" by preempting state and local statutes mandating community notice prior to the construction of commercial grade antennas, pointing out that such preemption may implicate the First Amendment. But because petitioners in this case relied on a facial challenge to the 2021 OTARD Order, the court did not rule on this narrower preemption issue.

Free State Foundation scholars are pleased to see the D.C. Circuit uphold a sound policy that fosters intermodal broadband competition by removing unreasonable barriers to the deployment of fixed wireless broadband equipment. Director of Policy Studies Seth Cooper wrote FSF Blog posts supporting the 2021 OTARD Order and proceeding. We hope to see more infrastructure reforms that remove broadband deployment barriers.