Lawsuit challenges rule allowing people to install wireless transmitting antennas on their homes without notifying neighboring property owners. The new rule would preempt state and local zoning laws, homeowner association rules and deed restrictions.
By CHD 5G and Wireless Harms Project Team, 3 March 2021
On Feb. 26, Children’s Health Defense (CHD) filed a new lawsuit against the Federal Communications Commission (FCC) challenging the adoption of a rule that would allow people to install wireless transmitting antennas on their homes without notifying neighboring properties. The suit was filed in the U.S. Court of Appeals in the DC Circuit.
At issue is an amendment to the “Over-the-Air Reception Devices” rule (“OTARD”) that would deprive people of the opportunity to object to the installation of wireless transmitting antennas on neighboring homes.
The rule, set to take effect March 29, would facilitate the fast deployment of 5G and 1,000,000 SpaceX’ Satellite antennas and create super Wi-Fi mesh networks in urban and rural areas.
At issue is an amendment to the “Over-the-Air Reception Devices” rule (“OTARD”) that would deprive people of the opportunity to object to the installation of wireless transmitting antennas on neighboring homes.
The rule, set to take effect March 29, would facilitate the fast deployment of 5G and 1,000,000 SpaceX’ Satellite antennas and create super Wi-Fi mesh networks in urban and rural areas.
CHD’s lawsuit, filed under the Administrative Procedure Act, asserts that the FCC’s amended OTARD rule violates constitutional rights and upends long-standing common law personal and property rights. The suit alleges that the amended rule leads to due process violations, is arbitrary, represents an abuse of discretion and was passed without authority and statutory jurisdiction.
OTARD allows private property owners to place fixed point-to-point antennas supporting wireless service on their property and, for the first time, to provide wireless data/voice services, including 5G, to users on neighboring properties by connecting a “hub” or “relay” designed to transmit the signal onto neighboring properties.
The only limitation imposed on property owners is the size of the antenna: Under the amended rule, the diameter of the antenna should not exceed 1 meter (approximately 3 feet).
The amended rule will not directly allow placement of “personal wireless service” (e.g., traditional mobile service) antennas, although it can effectively achieve the same outcome.
Scott McCollough, an attorney representing CHD in the case, said that while this distinction is important, “it does not mean that the rule change will have insignificant effects. To the contrary, the fixed wireless can be used to support private mobile service (3G, 4G, 5G) and it will allow for significant expansion of wireless services.”
OTARD eliminates all state and local zoning authority over these antennas. No permit is required. No notice to neighboring properties owners is required. And homeowners’ association and deed restrictions and any other state laws are preempted.
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