Cellular Taskforce v. Cellular Tele. Ind., Docket Nos. 97-4328

• Decision Date: 03 April 2000
• Docket Number: Docket Nos. 97-4328
• Citation: 217 F.3d 72
• Parties: (2nd Cir. 2000) CELLULAR PHONE TASKFORCE, et al., Petitioners, CELLULAR TELECOMMUNICATIONS INDUSTRY ASSOCIATION, NATIONAL ASSOCIATION OF BROADCASTERS, ASSOCIATION FOR MAXIMUM SERVICE TELEVISION, INC., ELECTROMAGNETIC ENERGY ASSOCIATION, and AT&T WIRELESS SERVICES, INC., Intervenors, v. FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES OF AMERICA, Respondents. (L); 98-4003(Con); 98-4005(Con); 98-4025(Con); 98-4122(Con). August Term 1999
• Court: U.S. Court of Appeals — Second Circuit

Page 72

217 F.3d 72 (2nd Cir. 2000)

CELLULAR PHONE TASKFORCE, et al., Petitioners, CELLULAR TELECOMMUNICATIONS INDUSTRY ASSOCIATION, NATIONAL ASSOCIATION OF BROADCASTERS, ASSOCIATION FOR MAXIMUM SERVICE TELEVISION, INC., ELECTROMAGNETIC ENERGY ASSOCIATION, and AT&T WIRELESS SERVICES, INC., Intervenors, v. FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES OF AMERICA, Respondents.

Docket Nos. 97-4328(L); 98-4003(Con); 98-4005(Con); 98-4025(Con); 98-4122(Con).

August Term 1999

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued April 5, 1999

Decided February 18, 2000

Petition for Rehearing Filed April 3, 2000

Decided: June 06, 2000

Petition for rehearing of decision denying petition for review of two final orders of the Federal Communications Commission ("FCC"): (1) Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation, 11 F.C.C.R. 15123 (1996); and (2) Procedures for Reviewing Requests for Relief from State and Local Regulations Pursuant to Section 332(c)(7)(B)(v) of the Communications Act of 1934, 12 F.C.C.R. 13494 (1997). We deny the petition.

EDWARD J. COLLINS, Cambridge, Massachusetts, petitioner.

Before: NEWMAN, WALKER, and SACK, Circuit Judges.

ON PETITION FOR REHEARING

PER CURIAM:

Petitioner Cellular Phone Taskforce ("CPT") has petitioned for rehearing to reconsider our decision in Cellular Phone Taskforce v. FCC, 205 F.3d 82 (2d Cir. 2000). We assume familiarity with our earlier decision.

CPT requests, inter alia, that we reconsider our determination that CPT's claims under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the Rehabilitation Act, 29 U.S.C. § 701 et seq. were not properly before us. In response to our decision that an FCC staff member's ruling on these claims was not an appealable final order of the FCC, CPT argues that the FCC did not issue a final order only because it impermissibly delegated its final decision to an agency staff member. We express no view as to the FCC's delegation of decisionmaking but, on reconsideration, agree that on the facts of this case CPT had done all it reasonably could to secure a final agency determination. Considering the discretion we have to review non-final agency determinations, see National Black Media Coalition v. FCC, 791 F.2d 1016, 1021 (2d Cir. 1986), we have chosen to consider the merits of CPT's claims.

CPT filed suit under Title II of the ADA, alleging that the FCC had forced states and local governments to discriminate against electrically sensitive people in violation of the ADA. See 42 U.S.C. § 12132 ("[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in . . . the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity"). CPT's claim fails, however,...