A three-judge panel of the D.C. Federal Appeals Court has rejected a challenge to the FCC's decision to amend its over-the-air reception device (OTARD) rule to remove a commercial use restriction.

One of the FCC's arguments for the change was the rise of streaming services, a point Senior Circuit Judge A. Raymond Randolph said in writing the opinion of the panel, which also included Judge Patricia Millett and Judge Gregory Katsas.

The court found that the FCC had "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."

The FCC had argued back in oral argument last December that the restriction it scrapped, which prevented commercial antennas that could transmit and relay as well as receive, was outdated and impeded the buildout of 5G wireless service.

The FCC was unanimous in its 2019 decision to expand the definition of user in the OTARD rule, which “prohibits laws, regulations, or restrictions imposed by state or local governments or private entities that impair the ability of antenna users to install, maintain, or use over-the-air reception devices” from customer to provider.

The FCC billed the change as another of its efforts to make it easier to deploy broadband infrastructure, particularly to rural and unserved/underserved areas, and to help agency rules keep pace with changing technology, like streaming. Just as cellular sites have gotten smaller and more numerous, so do commercial hubs need to be more numerous and placed closer to customers, goes the argument.

But activist group Children’s Health Defense had sued the FCC, arguing that easing the restriction on commercial operations of antennas to allow them to be erected in communities, and without prior notice in the case of unlicensed uses, was potentially life-threatening to children and others with radio frequency exposure-related conditions. “The Communications Act does not grant the commission the power to issue a license to kill,” an attorney for the group told the court in oral argument.

The group argued that the change allows for more and more powerful antennas that pose a new health risk that communities cannot prevent through restrictive covenants. “All of that protection goes away,” it told the court.

The FCC's attorney conceded in oral argument that the change would mean lots more antennas because the old rule meant that antennas could not be primarily used as a hub, and now they could be.

One of the reasons for the change was that as technology has evolved, he said, antennas have become multipurpose devices much in the same way that a computer is now used for word processing, gaming or to watch video. He said the antennas can be used to receive, transmit and relay, so the old restriction was obsolete and “didn’t make sense.”

Randolph said that "Whatever the validity of [Children’s Health Defense] analyses, their allegations [of harm] 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." ■

The Federal Communications Commission got some tough questioning from judges on the U.S. Court of Appeals for the D.C. Circuit in defending its decision to amend its over-the-air receive device (OTARD) rule to remove a commercial use restriction.

That came in oral argument Tuesday (Dec. 7).

The FCC argues that the restriction, which prevented commercial antennas that could transmit and relay, as well as receive, was outdated and impeded the buildout of 5G wireless service.

In fact the commission was unanimous in its 2019 decision to expand the definition of user in the OTARD rule, which “prohibits laws, regulations, or restrictions imposed by State or local governments or private entities that impair the ability of antenna users to install, maintain, or use over-the-air reception devices” from customer to provider.

The FCC billed the change as another of its efforts to make it easier to deploy broadband infrastructure, particularly to rural and unserved/underserved areas, and to help agency rules keep pace with changing technology. Just as cellular sites have gotten smaller and more numerous, so do commercial hubs need to be more numerous and placed closer to customers, goes the argument.

But activist group Children’s Health Defense had sued the FCC, arguing that easing the restriction on commercial operations of antennas to allow them to be erected in communities, and without prior notice in the case of unlicensed uses, was potentially life-threatening to children and others with radio frequency exposure-related conditions. “The Communications Act does not grant the commission the power to issue a license to kill,” an attorney for the group told the court in oral argument.

The group argued that the change allows for more and more powerful antennas that pose a new health risk that communities cannot prevent through restrictive covenants. “All of that protection goes away,” it told the court.

The FCC argues that the same RF limits remain in place, as do other restrictions beyond the commercial use restriction that was removed.

The judges pressed the FCC attorney on the fact that the antennas could now proliferate without homeowners knowing they were going up, since there was no requirement for community notification.

The agency’s attorney conceded the change would mean lots more antennas because the old rule meant that antennas could not be primarily used as a hub, and now they could be.

One of the reasons for the change was that as technology has evolved, he said, antennas have become multipurpose devices much in the same way that a computer is now used for word processing, gaming or to watch video. He said the antennas can be used to receive, transmit and relay, so the old restriction was obsolete and “didn’t make sense.”

He pointed out that the amendment retained size restrictions on the antenna — no more than 12 feet above the roofline — and power restrictions. The hub antennas must also be used by customer to receive service, as well as a commercial relay.

In rural America, many grain legs (bucket elevators for moving grain) have small wireless radios attached to them, providing the grain leg’s owner with broadband service. But a loophole in the current Federal Communications Commission rules means that the same service provider seeking to use the same type of radio and infrastructure to provide service to the next farmer a couple of miles down the road could have to go through an onerous permitting process, or be denied access altogether.

Thankfully, the FCC is looking to close that loophole, proposing an important update to its over-the-air-reception device (OTARD) rule that will have significant, positive implications for bringing broadband to unserved and underserved parts of America.

Among other things, the agency is looking to allow broadband “hubs” — technology the size of a pizza box — to be placed on private property to serve small clusters of homes, modernizing its rule to accord with the advance of today‘s wireless broadband networks.

Local Rules Are a Bottleneck

It is almost universally believed that all Americans should be able to access communications services like the high-speed internet. But some state and local laws, as well as homeowner association covenants, have long been a bottleneck to the spread and adoption of broadband services in the U.S.  

OTARD works to reduce that conflict.  

Once upon a time, towns and homeowner associations prevented owners and renters from putting antennas (such as satellite dishes) on their property, leaving consumers trapped with few TV programming options. Congress changed this in 1996 by creating a rule (through the FCC) that pre-empts state and local governments or private entities from impairing the ability of antenna users to install, maintain or use over-the-air-reception technology.    

OTARD was eventually extended to cover other antennas, too, such as those that “receive or transmit fixed wireless signals.” This has tremendous significance for high-speed internet access. Fixed wireless service represents one of the most cost-effective ways to bring the internet to millions of hard to reach, rural Americans.     

But there’s a catch. OTARD hasn’t kept up with technology. The last major update to OTARD occurred late in the Clinton Administration. Hub sites, which are integral to today’s fixed wireless broadband systems by leveraging vertical infrastructure closer to the consumer, are not covered by the rule.     

This seemingly small absence has big consequences for the digital divide.  

Our members provide fixed wireless broadband services to nearly 4 million Americans in largely rural areas of the country. They deliver the high-speed internet to places deemed by traditional providers as too costly to serve. Not only do they have to deal with difficult-to-serve areas, they must often face the myriad requirements imposed by cities and homeowner associations before placing broadband infrastructure into service.  

“Updating OTARD means both the farmer and his neighbor can get broadband quickly and cost-effectively.”

In the past, wireless broadband networks were designed around larger coverage areas and fewer hubs. Today’s broadband networks, however, are requiring lots of smaller hubs closer to customers. Consequently, today’s denser networks only multiply the local and association choke points, making construction harder to realize. This problem is greatest in rural areas that lack towers, piles and other infrastructure.

To rectify this, we asked the FCC to update the OTARD rule. We requested that they extend OTARD to cover all fixed wireless equipment, as long as it meets existing size and other reasonable restrictions for customer-end equipment. The only difference between what is covered and what is not is whether the farmer or his neighbor gets the signal. 

Nearly 20 Million Underserved

FCC statistics show that more than 20 million mostly rural Americans lack meaningful high-speed access to the internet. The proposed changes will help accelerate the deployment of broadband services in markets across the country, and will empower consumers to help bring competitive wireless broadband to their communities by hosting hub sites.

The modest changes proposed by the FCC will lower barriers to siting modern, fixed wireless infrastructure in places where it needs to go to provide better service. This means more Americans in unserved and underserved areas will get the high-speed Internet they need to participate in our digital society. 

Updating OTARD means both the farmer and his neighbor can get broadband quickly and cost-effectively. And that is the right thing to do. 

Claude Aiken is president and CEO of the Wireless Internet Service Providers Association (WISPA).