We Are The Evidence – by Dafna Tachover, Esq.
On Friday 2/11/22, the US Court of Appeals for the DC Circuit ruled against the Children’s Health Defense in its challenge of the FCC’s “Over The Air Reception Devices” (OTARD) rule amendment.
The OTARD rule amendment allows the installation of base station antennas on homes without application, permit or notice and while preempting all state and local regulations. This rule amendment aims to facilitate a massive deployment of 5G networks (mainly broadband – but also voice services).
Filing a case to stop this rule amendment was the right and necessary thing to do. I believe we conducted a perfect case and we did provide the court with strong legal arguments to rule in our favor (as the hearing indicated). The court had a chance to do the right thing, but unfortunately, it chose not to.
The court gave the FCC a green light to eliminate all “barriers to deployment” including all our rights to object to such installations, thereby allowing a Wireless Wild West and converting our neighborhoods into radiation saturated industrial zones.
When reaching its decision, the court was clear that indeed this is the impact of the rule. During the hearing, after an extensive exchange between Judges Randolph and Millet and the FCC’s attorney, he finally admitted that in fact all states and zoning laws are preempted except building, electric and fire codes. Addressing this elimination of rights, especially of notice, in its decision, the court stated that the FCC is “ treading on thin ice in asserting broad authority to preempt any notice requirements.” However, that is a meaningless “slap on the hand.” A right that was taken is not going to be given back.
I can see why finding in our favor was a challenge for the court. It is not easy for a court to stop a massive infrastructure deployment, and ruling in our favor would have created turmoil in the telecommunications arena. The court clearly was not ready for that. But this is not a justification.
One favorable and important outcome is the Court’s comment regarding our claim that the FCC rule amendment attempts to preempt federal and state civil rights and disability accommodation laws. In footnote 5, the court clarified that the amendment does not preempt federal disability laws. However, the court stayed silent about the FCC’s direct preemption of states’ disability laws. We believe that the FCC purposely attempted to preempt disability laws, as this was the last redress we had to claim health effects from wireless. At least that unconscionable effort by the FCC was partially stopped via this case.
I should note though that it is not much in terms of a remedy. Since there is no application or notice, those affected will learn about the installation of antennas only AFTER they are installed and after they are subsequently injured by them.
Reading the decision, my feeling is that the court first made the determination to rule against us and wrote the decision accordingly and for that reason ignored some of the arguments we made, such as the constitutional law arguments. We also believe that the court made a legal error when it refused to consider one of our arguments because it was not raised in the docket by CHD but by another submission.
We did provide the court with strong legal arguments to rule in our favor (as the hearing indicated). The court had a chance to do the right thing, but unfortunately, it chose not to.
I can see why finding in our favor was a challenge for the court. It is not easy for a court to stop a massive infrastructure deployment, and ruling in our favor would have created turmoil in the telecommunications arena. The court clearly was not ready for that. But this is not a justification.
Reading between the lines, it seems that the court felt it gave us a lot by allowing us to win the landmark guidelines case, and it expects us now to go directly to the FCC for resolution of all related issues. Unfortunately, we know better: the FCC is a captured agency and 5G is also a national security interest and even if we achieve some change via the FCC route, such change will take too long.
I believe the court knows better too, and by sending us back to the FCC, the court knowingly ruled to allow the FCC to take all of our rights, including constitutional rights; to harm people; to cause constructive eviction of people from their homes, with nowhere safe to go; to cause them injury, harm and death while providing them with no real recourse.
I once again thank Robert F. Kennedy Jr. and the Children’s Health Defense for trusting me and allowing me to file the case, and Scott McCollough, the attorney who worked with me. I thank our individual petitioners and affiants and the many who have helped and donated to support this massive effort and incredibly important case.
I am sorry.
Dafna