FCC Taken to Court Over the Change to its Over-the-Air Reception Device Rules

Adapted from an article by John Eggerton, Dec 7, 2021 | Original Multichannel News article here.

The U.S. Court of Appeals, District of Columbia Circuit judges pressed the FCC on the commercial uses of RF Microwave Radiation-emitting antennas proliferating into residential zones. The Federal Communications Commission got some tough questioning from on the D.C. Circuit judges in defending its decision to amend its over-the-air receive device (OTARD) rule to remove a commercial use restriction. Oral arguments were delivered on Dec 7, 2021.

The FCC argues that the restriction, which prevented commercial antennas that both receive and transmit was outdated and impeded the build out of Densified 4G/ 5G wireless infrastructure.

The FCC was unanimous in its 2019 decision to expand the definition of user from customer to provider 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”.

The FCC said the change was another one of its efforts to make it easier to deploy wireless broadband infrastructure and to help FCC rules keep pace with changing technology. The FCC argued, without evidence, that as cellular sites have gotten more numerous, there needs to be commercial hubs placed and constructed closer to customers in residential zones.

Advocacy group Children’s Health Defense (CHD) sued the FCC, arguing that easing the restriction on commercial operations of antennas to allow them to be erected in residential communities — and without prior notice — was potentially life-threatening to children and others. Many people can react biologically to RF microwave radiation at levels many thousands of times lower than the nonsensical FCC RF microwave exposure regulations, a limit that myopically fails for three reasons:

  1. Evidence already in the FCC record proves that since 1996 many Americans have been biologically damaged by 24/7 exposure to RF Microwave radiation from wireless infrastructure antennas at power output levels that are many thousands of times lower than the arbitrary commercial RF microwave radiation exposure guideline selected by the FCC in 1996.
  2. The “short cut” the FCC took in 1996 to select this industry-promulgated RF Microwave radiation exposure guideline myopically focuses only on the heating of tissue of living organisms and ignores every other scientifically-established adverse biological effect from pulsed, modulated, duty-cycled RF Microwave radiation, including neurological problems, dementia, reduced fertility, tinnitus (ringing in the ears), DNA damage, suppressed melatonin levels and immune functions and many more. The comprehensive list — that has been in the FCC’s record for decades — has been consistently ignored by the FCC. That is willful ignorance and negligence — plain and simple. That was a sticking point in the last lawsuit that the FCC lost to the Children’s Health Defense and Environmental Health Trust on Aug 13, 2021.
  3. Unbelievably, the FCC even left out the “time of exposure” parameter from the RF microwave radiation exposure guideline it selected in 1996. The FCC RF Microwave radiation regulation essentially says that people and all living organisms can receive an unlimited total amount of RF microwave radiation over time, as long as the RF Microwave radiation (the poison) is delivered at an acceptable rate. The “R” in SAR stands for Rate; power density is based on Watts (also a rate) and not on Joules (Watts x time). Clearly, the established scientific evidence (tens of thousands of industry-independent studies since the 1920s) proves that the FCC could and should have based its RF Microwave radiation exposure guideline on Specific Absorption (SA) and NOT on Specific Absorption Rate (SAR). Choosing SAR was essentially a dirty trick that allowed dangerous wireless infrastructure to proliferate into communities without the speed limits, seatbelts and airbags that this industry needs in order to safely operate such antennas. The Communications Act gets it right in Title 47 US Code, §324:

47 U.S. Code §324 – Use of minimum power

In all circumstances . . . all radio . . . shall use the minimum amount of power necessary to carry out the communication desired.

(June 19, 1934, ch. 652, title III, § 324, 48 Stat. 1091.)

W. Scott McCollough, CHD’s attorney told the court:


“The Communications Act Does Not Grant the Commission the Power to Issue a License to Kill.”


The CHD argued that the change allows for more and more powerful antennas that pose a new health disaster to communities and that the communities cannot prevent through restrictive covenants.

“All of that protection goes away,” McCollough 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 being constructed, since there was no requirement for community notification.

The FCC’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. He said one of the reasons for the change was that as technology has evolved, 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 roof line — but no effective power restrictions. The hub antennas are dual purpose — to be used by customer to receive service, and as a commercial relay service.