Childrens Health Defense v. FCC ( 2022 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 7, 2021 Decided February 11, 2022
No. 21-1075
CHILDREN’S HEALTH DEFENSE, ET AL.,
PETITIONERS
v.
FEDERAL COMMUNICATIONS COMMISSION AND UNITED
STATES OF AMERICA,
RESPONDENTS
On Petition for Review of an Order of the
Federal Communications Commission
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.
2
Before: MILLETT and KATSAS, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.
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
3
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
1
The Order stated that “there is no ‘aesthetics exception’ under”
the rule. Order at 548.
4
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
(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.
5
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, 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.
6
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,
2
Because we conclude that CHD has associational standing, we
do not address whether it has organizational standing.
7
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 streaming services as a justification for
expanding its antenna regulation. Id. at 545–46. The
Continental Airlines decision’s treating antennas as stations,
with its reasoning anchored in the Act’s text, survives any level
of scrutiny. See Chevron U.S.A. Inc. v. Nat. Res. Def. Council,
Inc., 467 U.S. 837, 843 n.9 (1984). The Commission’s citation
of and reliance on Continental Airlines provided sufficient
explanation for its authority to expand the regulation to hub-and-
relay antennas carrying broadband Internet. See 5 U.S.C.
§ 553(c) (“After consideration of the relevant matter presented,
the agency shall incorporate in the rules adopted a concise
general statement of their basis and purpose.”).
Petitioners contend that Section 303 cannot support the
Order. They claim that the Act erects a distinction between
carrier equipment and end-user equipment—a distinction the
Order obliterates. Whatever the merits of this argument, the
issue is waived. Under 47 U.S.C. § 405(a), petitioners must
“give the FCC a ‘fair opportunity’ to pass on a legal or factual
argument.” Wash. Ass’n for Television & Children v. FCC, 712
F.2d 677, 681 (D.C. Cir. 1983) (quoting Alianza Fed. de
Mercedes v. FCC, 539 F.2d 732, 739 (D.C. Cir. 1976)); see also
Delaware v. Surface Transp. Bd., 859 F.3d 16, 21 (D.C. Cir.
2017); Am. Scholastic TV Programming Found. v. FCC, 46 F.3d
1173, 1177 (D.C. Cir. 1995).
Nowhere in CHD’s ex parte submission or in the individual
8
petitioners’ comments is the question of the Commission’s
authority under Section 303 raised. The closest CHD comes to
presenting this issue is its statement: “Nor is this particular
proposed rule reasonably necessary to the effective performance
of the FCC’s various responsibilities.” J.A. 66. But this
generality is not enough to preserve every conceivable claim of
unlawful action. See Wallaesa v. FAA, 824 F.3d 1071, 1078
(D.C. Cir. 2016) (citing Nuclear Energy Inst., Inc. v. EPA, 373
F.3d 1251, 1297 (D.C. Cir. 2004)).3 Nor were the petitioners’
arguments raised by other parties’ comments that the
Commission lacked statutory authority. The other parties to the
rulemaking proceeding did not question the Commission’s
authority under Section 303. Contrast Competitive Enter. Inst.
v. FCC, 970 F.3d 372, 380 (D.C. Cir. 2020).
B.
Petitioners say the Order lacks a reasoned foundation
because the Commission disregarded the human health
consequences of its action. The Order’s intended effect is to
increase the number of antennas installed on private property.
Petitioners assert that the result will be an increased risk of harm
to individuals who are sensitive to radiofrequency
electromagnetic radiation.
3
Even if petitioners did not become aware of the Commission’s
view that Section 303 provided promulgating authority until after the
Order issued, that does not spare them of the obligation to give the
Commission opportunity to address their arguments. In such
instances, challengers must seek reconsideration from the Commission
before raising the matter in this court. See In re Core Commc’ns, Inc.,
455 F.3d 267, 276–77 (D.C. Cir. 2006); Freeman Eng’g Assocs., Inc.
v. FCC, 103 F.3d 169, 182 (D.C. Cir. 1997); Petroleum Commc’ns,
Inc. v. FCC, 22 F.3d 1164, 1169–70 (D.C. Cir. 1994).
9
The Commission dismissed these concerns by pointing to
a 2019 order that studied the effects of exposure to wireless
radiofrequency on human health and concluded that there was
no need to implement stricter exposure limits. Order at 555 &
n.133 (citing Proposed Changes in the Commission’s Rules
Regarding Human Exposure to Radiofrequency Electromagnetic
Fields, 34 FCC Rcd. 11,687 (2019)). The Commission also
noted that concerns about possible health effects from
radiofrequency were “more appropriately directed” at the
radiofrequency rulemaking and, hence, the comments regarding
adverse effects were “outside the scope of this proceeding.” Id.
at n.133.
Ordinarily, an agency may dispose of claims by relying
upon other rulemakings. See Bechtel v. FCC, 10 F.3d 875, 878
(D.C. Cir. 1993). Agencies can also limit the scope of their
rulemaking and “relegate ancillary issues to separate
proceedings.” Alon Ref. Krotz Springs, Inc. v. EPA, 936 F.3d
628, 659 (D.C. Cir. 2019) (per curiam); see also Mobil Oil
Exploration & Producing Se. Inc. v. United Distrib. Cos., 498
U.S. 211, 231 (1991). The Commission therefore properly
dispensed petitioners’ health-and-autonomy-based claims by
relying on its 2019 order.4
4
This court remanded a case contesting the 2019 order because
the Commission did not give sufficient reasons for its conclusions
regarding the impact of radiofrequency waves on human health. See
Env’t Health Tr. v. FCC, 9 F.4th 893, 910 (D.C. Cir. 2021). But this
does not require a remand here. As explained, the Commission
expressly limited the scope of its rulemaking and directed comments
regarding radiofrequency and health to the 2019 order’s rulemaking.
Order at 555 n.133. Agencies generally have discretion to break up
their process of regulating into separate rulemaking proceedings—they
“do not ordinarily have to regulate a particular area all at once.”
Transp. Div. of the Int’l Ass’n of Sheet Metal Workers v. Fed. R.R.
Admin., 10 F.4th 869, 875 (D.C. Cir. 2021); see Personal Watercraft
10
Petitioners argue that the amendment to the regulation will
violate the FHA and the ADA. It is unnecessary to go into any
detail about how exactly the amendment would supposedly
bring about these violations.5 It is enough to point out that here,
as in Building Owners, 254 F.3d at 100, petitioners are mounting
a facial challenge. Whatever the validity of their FHA and ADA
analyses, their allegations depend on the presence, within the
range of a hub or relay antenna, of an individual who is
adversely affected by radiofrequency radiation. The upshot is
that there necessarily will be circumstances in which the
amendment of the Order will have no adverse consequences
because no such individual is in the vicinity. Yet in order to
succeed in their facial challenge, petitioners had to show that
there are no circumstances in which amendment of the
regulation would be valid. See Reno v. Flores, 507 U.S. 292,
300–01 (1993); INS v. Nat’l Ctr. for Immigrants Rts., Inc., 502
U.S. 183, 188 (1991); Cellco P’ship v. FCC, 700 F.3d 534, 549
(D.C. Cir. 2012); Air Transp. Ass’n of Am., Inc. v. U.S. Dep’t of
Transp., 613 F.3d 206, 213 (D.C. Cir. 2010); Ronald A. Cass,
Nationwide Injunctions’ Governance Problems: Forum
Shopping, Politicizing Courts, and Eroding Constitutional
Structure, 27 Geo. Mason L. Rev. 29, 75 n.193 (2019); Aaron L.
Nielson, D.C. Circuit Review - Reviewed: Thoughts from Judge
Randolph, Yale J. on Regul. Notice & Comment (Dec. 8, 2017),
https://perma.cc/T87D-HCXY.
Indus. Ass’n v. Dep’t of Commerce, 48 F.3d 540, 544–45 (D.C. Cir.
1995). As such, it was not arbitrary for the Commission to direct
petitioners to the 2019 order’s rulemaking, which remains ongoing in
light of our remand.
5
Petitioners maintain in this court that the Commission’s
amendment will “preempt rights afforded by the FHA/ADA.” This
position is frivolous—a regulation can no more preempt a federal
statute than a federal statute could preempt a provision in the
Constitution.
11
Moreover, petitioners’ arguments regarding the FHA and
ADA are premised on the impact of radiofrequency exposure.
But, as with petitioners’ general concerns regarding health, the
Commission sufficiently explained that its Order “does not
change the applicability of the Commission’s radio frequency
exposure requirements” and that such concerns were more
appropriately directed at its radiofrequency rulemaking. Order
at 555 & n.133.
Petitioners also contend that the Order unlawfully preempts
various state and local laws. In the Order, the Commission
stated that it was now preempting local restrictions on the
placement of antennas primarily used for hub and relay. Id. at
558. As we have discussed, the Commission treated these
antennas as “stations,” the location of which was within the
Commission’s regulatory authority under 47 U.S.C. § 303(d).
The Supreme Court has instructed that the weight accorded an
“agency’s explanation of state law’s impact on the federal
scheme depends on its thoroughness, consistency, and
persuasiveness.” Wyeth v. Levine, 555 U.S. 555, 577 (2009).
Given our conclusion crediting the Commission’s explanation
for its statutory authority in its Continental Airlines decision, the
Commission may also preempt restrictions on the placement of
the new category of antennas now included in the regulation.
See Nat’l Ass’n of Regul. Util. Comm’rs v. FCC, 880 F.2d 422,
431 (D.C. Cir. 1989).
Petitioners also raise concerns about the preemption of local
ordinances or contractual provisions requiring property owners
to provide notice to local governments or homeowners’
associations before installing commercial-grade antennas.
Although we uphold the Order against facial attack, we
acknowledge that the Commission is treading on thin ice in
asserting broad authority to preempt any notice requirements
12
affecting antenna installations.6
The petition is therefore denied.
So ordered.
6
The Commission maintains that because local regulation of
where these antennas are installed is preempted, there is no point in
providing the local authorities or their citizens with notice of pending
installations. But it does not follow that because citizens do not have
a vote or a veto over the placement of an antenna on a neighbor’s
property, they are not entitled to know of the prospect. The First
Amendment to the Constitution preserves the right of the people to
petition the government for redress of grievances. See Sorrell v. IMS
Health Inc., 564 U.S. 552, 577 (2011) (“The First Amendment directs
us to be especially skeptical of regulations that seek to keep people in
the dark for what the government perceives to be their own good.”
(citation omitted)); Am. Bus Ass’n v. Rogoff, 649 F.3d 734, 738 (D.C.
Cir. 2011) (“The right ‘extends to [petitioning] all departments of the
Government,’ including administrative agencies and courts.”
(alteration in original) (quoting Cal. Motor Transp. Co. v. Trucking
Unlimited, 404 U.S. 508, 510 (1972)); Liberty Lobby, Inc. v. Pearson,
390 F.2d 489, 491 (D.C. Cir. 1967) (Burger, J.) (“[E]very person or
group engaged . . . in trying to persuade Congressional action is
exercising the First Amendment right of petition.”); 2 Joseph Story,
Commentaries on the Constitution § 1894, at 619 (Thomas M. Cooley
ed., 4th ed. 1873) (1833) (emphasizing the centrality of petitioning for
redress of grievances in republican government).