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//Listen Live 12/7: Court Hearing in Case Challenging FCC’s OTARD Rule Allowing 5G Antennas on Homes
December 5, 2021

Listen Live 12/7: Court Hearing in Case Challenging FCC’s OTARD Rule Allowing 5G Antennas on Homes


By: Dafna Tachover, Esq. MBA


As part of its unwavering commitment to fastrack 5G and wireless deployment, on January 7, 2021, the Federal Communications Commission (FCC), the US federal agency entrusted with regulating telecommunications, adopted an amendment to its  “Over The Air Reception Devices” rule (OTARD). 


The OTARD rule was never intended to regulate transmitting antennas, but via the rule amendment it is now used by the FCC to allow the installation of fixed wireless base station antennas on private property (including homes) in order to provide wireless service to other properties. 


With the adoption of this amendment, the FCC has gone further than with any previous regulation in removing “barriers for deployment” while continuing to deny and disregard the health and safety impact of wireless radiation on the public. 


The amendment provides for unprecedented and sweeping preemptions, including all state and local laws and zoning regulations such as the requirements of notice, application and permit. It preempts Homeowners Association rules and deed restrictions and civil rights laws including disability accommodation laws. The rule amendment is enabling a ‘Wireless Wild West’ and transforming neighborhoods into radiation-saturated industrial zones. 


To protect the public and the law, in February of 2021, Children’s Health Defense (CHD) filed a lawsuit against the FCC. The lawsuit, known as a “Petition for Review,” was filed in the US Court of Appeals for the DC Circuit. This week, on Tuesday, December 7, 2021 at 9:30 am the court will hear the oral arguments in this case.


CHD’s lawsuit challenges the legitimacy of this amendment on various grounds. It claims the amended rule violates constitutional rights and common law personal and property rights, that it leads to due process violations, and that it was passed without authority and statutory jurisdiction. 


CHD main arguments were presented in its main brief filed on June 23, 2021. The FCC’s brief was filed on August 23,  and CHD’s reply brief was filed on September 15.  In October, CHD filed the compilation of evidence referenced in the case, known as the Joint Appendix. The Joint Appendix consists of 27 binders with a total of 5,000 pages. The case has attracted much public interest, and on June 30, 2021, Sixty-eight organizations representing more than 1 million people signed onto an amicus brief in support of Children’s Health Defense’s (CHD) lawsuit


This case is not the first challenge CHD has brought against the FCC. On August 13, 2021, the US Court of Appeals for the DC Circuit (the same court that will hear the OTARD challenge) ruled in favor of CHD in its historic case against the FCC which challenged the FCC’s decision not to review its 1996 health and safety guidelines regarding 5G and wireless harms (guidelines case). The court ruled that the FCC’s decision was capricious and arbitrary, and that the agency failed to review overwhelming evidence of harm. The upshot of this decision is that while the FCC guidelines are still in effect, they cannot be considered as an assurance of safety in regard to non-cancer harms. 


One of the judges who ruled in favor of CHD in the guidelines case, the Honorable Patricia Ann Millett, is now presiding over the three-judge panel in the OTARD case. The other judges are Gregory G. Katsas and A. Raymond Randolph


During the oral arguments in the guidelines case, Judge Millet expressed concerns that the FCC guidelines may not be appropriate for the current wireless reality and that they do not protect against cumulative exposure. Those serious concerns are particularly relevant in regard to the effects of the OTARD deployment. 


In its decision to pass the OTARD amendment, the FCC dismissed the issues CHD had raised regarding the adverse effects the rule amendment will have by hiding behind its health guidelines. The question that arises is, considering the recent court decision, which clearly undermines these guidelines, should the FCC be allowed to enable such massive deployment and removal of all laws that aim to protect the public before the agency proves that its guidelines guarantee the health and safety of the public? 


The effects of the OTARD rule amendment are especially concerning for the many who are already aware that their injuries and sickness have been caused or aggravated by exposure to the radiation emitted by 5G and other wireless radiation-emitting sources. For them, the adoption of the OTARD amendment means no place will be safe and they will have nowhere to escape. 


The FCC is well aware of the growing reports of severe injuries from wireless, including the development of Radiation Sickness (also known as Electro-Sensitivity. But the agency continues to ignore the injured and the OTARD rule is removing all their due process rights. 


In an effort to stop the FCC from passing this devastating rule amendment and alerting  it once again to the extent of the sickness, in April 2021, CHD filed a 21-page letter with the FCC. The letter was joined by over 15,090 people, 6,231 of whom reported that they and/or their children have developed sickness from this radiation. Many included comments describing tragic stories of sickness and death. Nevertheless, the FCC ignored the letter and the evidence of injury and quoted its obsolete guidelines to deny this sickness and the rights of the injured. One of CHD’s main objectives in this case is to force the FCC to acknowledge the sickness and to protect the injured. 

CHD’s legal team who have led this case includes attorneys Dafna Tachover, Robert F. Kennedy, Jr., and Scott McCollough. McCollough will argue the case on behalf of CHD in the December 7 hearing. The public can listen to the hearing live on YouTube. The case is scheduled for the morning session which starts at 9:30 am. However, both cases are second on the roster of the court in which they are being heard, therefore it is impossible to know the exact time the hearing will start. Most likely, it will not start before 10 am.