FCC Urges Dismissal of Petition Challenging RF Equipment Testing Rules

Make Community allege the FCC violated the Administrative Procedure Act when it amended rules incorporating four new equipment testing standards, and did so without the proper notice and comment protocol (see 2403280002). Their petition asks the D.C. Circuit to remand the rules to the FCC for what they contend should be a proper rulemaking (see 2311090002). But in seeking review, the petitioners don’t address the suitability of updating the standards, the FCC’s brief said. Instead, they contend that by incorporating the standards in the rules by reference to their availability elsewhere, the commission violated the notice-and-comment requirements of the APA, and undermined the public interest in making law available to the public, it said. In its brief, the FCC argued that incorporation by reference “is a longstanding practice that allows an agency to refer, in the text of a published rule, to material available elsewhere instead of republishing that material in the rule itself.” In addition, the FCC said the petitioners aren’t labs engaged in testing RF-emitting equipment. Moreover, they haven’t identified any interest that the rules proposed and adopted by the commission would affect. The petitioners’ challenge fails even if the D.C. Circuit “were to reach the merits of their arguments,” the brief said, arguing the FCC provided the public sufficient notice and an opportunity to comment in the rulemaking. The agency also complied with the law governing incorporation by reference by ensuring that the standards were reasonably available to the class of persons affected, said the brief. That’s “all that the law requires,” it added. Accordingly, the petition for review should be dismissed, it said.