CHD v. FCC: Hopeful OTARD Hearing & Webinar Registration
By Dafna Tachover, Esq. MBA
We finally arrived at the finish line of the OTARD case and we are finishing with a smile. The hearing on December 7 went well and Scott McCollough did a fantastic job arguing the case. However, it is impossible to predict the outcome. We did the best we could, we are content with our efforts and we are hopeful. The title of a Law360 article published today about the hearing expresses my opinion of it. Full text: DC Circ. Appears Skeptical Of FCC Wireless Antenna Rules.
Court’s Decision – Now we just have to wait for the Court’s decision. The DC Circuit usually issues its decisions within 6 months of the hearing.
Join Our OTARD Webinar – I know many people have questions about this case and its implications. Therefore, on Wednesday, December 15, at 3 pm ET, Scott McCollough and I will conduct a webinar with a Q & A session in which we’ll discuss the case and the hearing.
Register for the Webinar Here (pre-registration is required). We thank 5G Free California for hosting this event.
Recording of the Hearing – For those who missed the hearing, the recording is available on YouTube. The hearing starts at 30:35 and ends at 1:12:00. It is only 37 minutes and I recommend listening to it. See below links to transcripts of selections from the oral arguments:
Transcript of CHD’s Oral Arguments
Transcript of FCC’s Oral Arguments
A Snapshot of the Hearing:
The judges asked good questions including several regarding the increase in RF exposure, property and homeowners’ association rights and due process. It seemed they were especially concerned with aesthetics. Judge Randolph asked whether local communities would be allowed to pass regulations to prevent these antennas because “they are ugly and we don’t want them in our town?” The FCC’s attorney admitted that it would likely be considered an “unreasonable restriction” and therefore would be prohibited.
The judges’ questions led the FCC to reluctantly admit that we are correct in our assertions as to the impact of the rule amendment: no notice of installation of these antennas is required; there is no ability to object to their installation; and that essentially, the FCC considers any barrier to installation unreasonable and therefore unlawful, so indeed all state and municipal laws are preempted except for compliance with electric, building and fire codes.
The judges, especially Judge Millet, who presided over the panel, appeared to see through the FCC’s efforts to minimize the impact this rule has. The FCC continuously argued that the only thing the rule does is to remove the “private use” restriction. McCollough explained that this alleged small change completely flips the whole purpose of the rule resulting in a massive impact.
It felt as if the FCC’s attorney attempted to avoid answering the questions knowing the answers would not help the FCC’s case. It was quite noticeable, even to a child. In a comment on my Facebook page Amy wrote: “I had my 10-year-old son listening and he could understand what she [Judge Millet] was asking. He didn’t understand why the FCC attorney couldn’t answer.” While usually attorneys want more time to speak, not less, after yet another intense exchange with Judge Millet, the FCC attorney told the court “I am out of time, your honor.”
Concluding his arguments, McCollough used vivid comparisons suggested to him by Robert F. Kennedy, Jr. to demonstrate the difference between the old and the new rule allowing “really really ugly powerful antennas”: “The difference is like the difference between a porch light to stadium lights emitting out to a mile, or the difference between TV speakers to a large rock band playing at a stadium for people who can hear it up to a mile.“
It Takes A Village
As always, it takes a village. Many people were involved and worked hard and under a lot of pressure. First and foremost – a huge thank you to Scott McCollough, who as always has done a superb job at every step of the way. To Shannon Koenig who is an essential part of our team, and to Ed Friedman for his help with editing even though it was always late and last minute. I have the utmost appreciation for our Petitioners and our Affiants and their family members for being willing to share their personal experiences and hardships. It takes a lot of courage. Thank you Dr. Elliot, Ginger, Jonathan, Angela, Dr. Hoffman, Michele, and Jennifer. Special thanks to the medical experts who filed reports: Prof. Beatrice Golomb, Prof. Riina Bray and Dr. Toril Jelter. Most Importantly, thank you Robert F. Kennedy, Jr., and the Children’s Health Defense team and their donors for enabling us to bring this case.