Challenge of FCC Antenna Decision Faces Procedural Hurdles: Court
A legal challenge to the FCC's over-the-air reception devices (OTARD) rules might face procedural problems, a federal judge said Tuesday. But the three-judge panel for the U.S. Court of Appeals for the D.C. Circuit also seemed skeptical during oral argument (docket 24-1108) of the commission's creating a "human presence" requirement in its OTARD rules for Indian Peak Properties. The company is appealing an FCC order that denied its petitions for declaratory ruling. Indian Peak was seeking a federal preemption under the OTARD rule of a Rancho Palos Verdes, California, decision to revoke its local permit for the deployment of rooftop antennas on a property (see 2405060035).
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Spectrum lawyer Julian Gehman, representing petitioner Indian Peak, said the FCC had the authority to require a human presence as part of its OTARD rules, but creating that requirement without a notice-and-comment procedure isn't permissible. He said the requirement came about via ad hoc action by the Wireless and Media bureau.
Judge Florence Pan said that while Indian Peak had "a strong argument" on the merits, it faces a procedural hurdle in arguing that the bureaus violated these provisions, since Indian Peak never got an FCC ruling on how the procedures are supposed to work.
The OTARD rule was never intended to protect a house full of antennas but without any people, said FCC Office of General Counsel lawyer John Grimm. He added that Pan singled out the problem with Indian Peak's procedural case: There's no final FCC decision on what the bureaus did. The full commission found an alternate basis for ruling on the recon petition. Grimm said the language Indian Peak used when it argued it wasn't seeking further comment suggested that it was satisfied with the record and that it believed the record would allow it to win. The city of Rancho Palos Verdes, as seemingly the only interested party in the proceeding, had opportunities to take part, he said, adding this was functionally the same as a notice-and-comment proceeding.
Pan questioned that argument, saying the agency has an obligation to hear from the public, and no party is supposed to have the ability to waive that step. As the petitioner, Indian Peak is the one raising the argument in the first place that the bureaus violated OTARD, Grimm replied. He said the court has the option of remanding the case to the FCC with instructions about getting a more fulsome record. He challenged Indian Peak's argument that FCC rules discourage recon petitions after an application for review has been denied, saying the statute clearly requires them. There also is no reason to think the agency wouldn't consider a recon petition in its ordinary course of business, he said.
Grimm was pressed repeatedly on why the agency adopted a regular human presence requirement in OTARD, rather than relying on the fact that OTARD protects users, but, under the rules, communications service providers -- such as those that deploy antennas -- don't count as users.
Also hearing the case were Judges Sri Srinivasan and Patricia Millett.