Children's Health Def. v. Fed. Commc'ns Comm'n

• Decision Date: 11 February 2022
• Docket Number: No. 21-1075,21-1075
• Citation: 25 F.4th 1045
• Parties: CHILDREN'S HEALTH DEFENSE, et al., Petitioners v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents
• Court: U.S. Court of Appeals — District of Columbia Circuit

25 F.4th 1045

CHILDREN'S HEALTH DEFENSE, et al., Petitioners

v.FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents

No. 21-1075

United States Court of Appeals, District of Columbia Circuit.

Argued December 7, 2021

Decided February 11, 2022

W. Scott McCollough argued the cause for petitioners. With him on the briefs was Robert F. Kennedy Jr.

Stephen Diaz Gavin was on the brief for amici curiae Safe Technology Minnesota, et al. in support of petitioners.

William J. Scher, Counsel, Federal Communications Commission, argued the cause for respondents. With him on the brief were Todd Kim, Assistant Attorney General, U.S. Department of Justice, Justin D. Heminger and Allen M. Brabender, Attorneys, and Jacob M. Lewis, Associate General Counsel, Federal Communications Commission.

Before: Millett and Katsas, Circuit Judges, and Randolph, Senior Circuit Judge.

Randolph, Senior Circuit Judge:

This is a petition for judicial review of an amendment to a regulation of the Federal Communications Commission. The regulation, as originally promulgated, authorized the installation on private property, with the owner's consent, of "over-the-air reception devices," regardless of State and local restrictions, "including zoning, land-use, or building regulation[s], or any private covenant, homeowners’ association rule or similar restriction on property."

Telecommunications Act of 1996; Preemption of Restrictions on Over-the-Air Reception Devices, 61 Fed. Reg. 46,557, 46,562 (Sept. 4, 1996) (codified at 47 C.F.R. § 1.4000(a)(1) ). Back then, property owners used such antennas to receive direct satellite services, video programming, and television broadcast signals. Id. The regulation preserved local authority to impose "certain restrictions for safety and historic preservation purposes." Promotion of Competitive Networks in Local Telecommunications Markets, 15 FCC Rcd. 22,983, 23,027–28 (2000). The regulation also covered antennas capable of both receiving radio waves and transmitting signals. Id. at 23,027.

The FCC has amended its regulation several times. See Bldg. Owners & Managers Ass'n Int'l v. FCC , 254 F.3d 89, 91–93 (D.C. Cir. 2001). In 2004, the Commission determined that these antennas could serve not only a single property owner but also multiple customers in one location, provided the antennas were not "designed primarily for use as hubs for distribution of service." Promotion of Competitive Networks, 19 FCC Rcd. 5637, 5644 n.42 (2004). The 2004 order continued to stress that the regulation governed only "customer-end equipment" serving "the customer on such premises ." Id. at 5644. It did not cover carriers’ locating "hub-sites on the premises of a customer in order to avoid compliance with a legitimate zoning regulation." Id.

In 2019, the Commission solicited comments on expanding coverage to include antennas that act as "hub sites" or relay service to other locations—thus, eliminating the 2004 prohibition on antennas "designed primarily for use as hubs for distribution of service." See Updating the Commission's Rule for Over-the-Air Reception Devices, 34 FCC Rcd. 2695, 2696, 2699 (2019). In its finalized order, the Commission expanded its regulatory preemption when: "(1) the antenna serves a customer on whose premises it is located, and (2) the service provided over the antenna is broadband-only." Updating the Comm'n’s Rule for Over-the-Air Reception Devices, 36 FCC Rcd. 537, 540 (2021) [hereinafter Order] (amending 47 C.F.R. § 1.4000 ). The Order maintained several limitations, including the exemption for local "restrictions necessary for safety and historic preservation" and "requirements that antennas must be less than one meter in diameter or diagonal measurement." Id. at 540–41.¹ Local restrictions on antennas extending "more than twelve feet above the roofline" also continued to control land use. Preemption of Local Zoning Regulation of Satellite Earth Stations, 11 FCC Rcd. 19,276, 19,299 (1996) ; see Order at 540, 548 n.83.

Many comments, including those of the petitioners in this case, expressed concern about possible health effects from increased radiofrequency exposure. Petitioner Children's Health Defense (CHD) argued that the proliferation of commercial-grade antennas would increase the suffering of those with radiofrequency sensitivity—violating their rights under the Americans with Disabilities Act (ADA), the Fair Housing Act (FHA), and the U.S. Constitution's protections of private property and personal autonomy. CHD also asserted that the amendments would deny affected individuals fair notice and an opportunity to be heard.

I.

The Commission suggests that none of the individual petitioners have Article III standing because they fail to show individualized risks of increased harm from the amendment of the regulation. The individual petitioners claim that they or their family members will suffer injury if new commercial-grade antennas get installed near their properties due to the Order's permissiveness. The Commission posits that fears of greater antenna proliferation from the Order are not enough. In the Commission's view, even if new antennas get installed near petitioners, it would not be apparent whether the deployments happened because of the Order.

The Commission is correct that anyone claiming injury from an agency's action or inaction, but who is not otherwise regulated directly, encounters some difficulty in establishing standing. See Food & Water Watch, Inc. v. Vilsack , 808 F.3d 905, 914 (D.C. Cir. 2015). But "if the complainant is ‘an object of the action (or forgone action) at issue’ ... there should be ‘little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it.’ " Sierra Club v. EPA , 292 F.3d 895, 900 (D.C. Cir. 2002) (quoting Lujan v. Defs. of Wildlife , 504 U.S. 555, 561–62, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ); see also State Nat'l Bank of Big Spring v. Lew , 795 F.3d 48, 53 (D.C. Cir. 2015). Here, two of the petitioners’ interests are impacted directly by the Order.

The Order purports to preempt not only state and local regulations governing installation of relevant antennas, but also deed restrictive covenants. Order at 542–43. Petitioners Dr. Erica Elliott and Ginger Kesler allegedly suffer from radiofrequency sensitivity. They purchased homes in communities with restrictive covenants limiting antenna installation. Dr. Elliott's community has a charter requiring approval of new antennas and restricting the use of residential property for commercial activities. Ms. Kesler lives in an area with a homeowners’ association; community by-laws and deed restrictions prohibit the installation of wireless antennas over two feet and commercial activity. Ms. Kesler purchased her home in part because of these restrictions.

Potential impairment of contractual or property rights can create an injury in fact. See Sw. Power Pool, Inc. v. FERC , 736 F.3d 994, 996 (D.C. Cir. 2013) ; B&J Oil & Gas v. FERC , 353 F.3d 71, 75 (D.C. Cir. 2004) ; Idaho Power Co. v. FERC , 312 F.3d 454, 460 (D.C. Cir. 2002). The restrictions just mentioned are, according to Dr. Elliott and Ms. Kesler, valuable because they prevent the installation of allegedly harmful commercial-grade antennas. By preempting these protections, the Order poses a direct threat to these petitioners’ interests. These petitioners are thus an object of the Commission's Order—in the same way a municipality's zoning regulations would be an object of the Order. See Order at 542. Dr. Elliott and Ms. Kesler therefore have Article III standing. They need not show some greater probability of harm from the regulation of third parties. Compare Defs. of Wildlife , 504 U.S. at 561–62, 112 S.Ct. 2130, with Pub. Citizen, Inc. v. Nat'l Highway Traffic Safety Admin. , 489 F.3d 1279, 1295 (D.C. Cir. 2007). And because Dr. Elliott and Ms. Kesler are CHD members, and the other elements of standing are plainly satisfied on this record, CHD has associational standing. See Am. Trucking Ass'ns, Inc. v. Fed. Motor Carrier Safety Admin. , 724 F.3d 243, 247 (D.C. Cir. 2013).²

II.

A.

Petitioners’ initial contention is that the Commission did not establish its statutory authority for amending the regulation to include "hub and relay antennas that are used for the distribution of broadband-only fixed wireless services" even if "they are primarily used for this purpose ...." Order at 537; see Comcast Corp. v. FCC , 600 F.3d 642, 655 (D.C. Cir. 2010).

Paragraph 26 of the Order identifies Section 303 of the Communications Act as granting it authority to "adopt rules governing services that use spectrum as well as rules applicable to antennas and other apparatus[es]." Order at 550–51 & n.102. Section 303(d) allows the Commission to "[d]etermine the location of classes of stations or individual stations." 47 U.S.C. § 303(d).

The Commission treats "antennas" as "stations." Footnote 102 of the Order cites the Commission's Continental Airlines decision, which explained why "antennas are ‘stations’ for [the] purposes of section 303(d)." Order at 550 n.102. Continental Airlines points to Act's definitions section. 21 FCC Rcd. 13,201, 13,217 & nn.107–08 (2006). The statute defines " ‘radio station’ or ‘station’ " as "a station equipped to engage in radio communication or radio transmission of energy." 47 U.S.C. § 153(42). The phrase "radio communication" includes "the transmission by radio of writing, signs, signals, pictures, and sounds of all kinds, including all instrumentalities, facilities, apparatus, and services (among other things, the receipt, forwarding, and delivery of communications) incidental to such transmission." Id. § 153(40).

The definition of "radio communication" encompasses much of what is on the Internet—visual images, audio, and text. The technology involved here uses the radio-wave spectrum. Order at 550–51 n.102. And the Commission emphasizes the growth of online...