A federal appeals court on Friday ruled in favor of the FCC in a case brought by the non-profit Children’s Defense Fund. The non-profit challenged the legitimacy of the amendment adopted by the FCC to its “Over The Air Reception Devices” (OTARD) rule in January, 2021. The U.S. Court of Appeals for the District of Columbia Circuit denied the Children’s Health Defense petition to overturn the Commission’s OTARD rule.
The Wireless Internet Service Providers Association (WISPA) said it asked the FCC to update the OTARD rule. The 2021 update allows the installation of fixed wireless base station antennas including 5G antennas on private property (including homes) in order to provide wireless service to other properties.
In its decision, the court noted that 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.’”
According to the court, in the final 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.”
The order maintained several limitations, according to the court, 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.” Local restrictions on antennas extending “more than 12 feet above the roofline” also continued to control land use, noted the court.
Friday, WISPA VP of Policy Louis Peraertz said the update, “will facilitate the placement of broadband-only ‘hubs’ and ‘relay antennas’ – pizza box-sized technology – on homes, multi-tenant buildings and vertical structures, providing a potent tool for WISPs and other small innovators to grow broadband deployment beyond past limits imposed by the former rule.”
In a lawsuit, the Children’s Defense Fund argued the amended rule violates constitutional rights and common-law personal and property rights. It also said the amendment provides “unprecedented and sweeping” preemptions, including all state and local laws and zoning regulations.
The court disagreed, saying the OTARD is within the authority of the Commission to enact, and was a reasonable exercise of that authority to regulate U.S. communications services.
Peraertz said the decision “provides giant steps to level the playing field for broadband providers who do not enjoy the statutory benefits of access to infrastructure, such as poles and rights-of-way.”
By Leslie Stimson, Inside Towers Washington Bureau Chief
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