“Children’s Health Defense will hold a press conference March 22 to discuss why it seeks emergency relief to stay a rule that would preempt federal and state civil rights laws designed to protect the disabled.”
“Children’s Health Defense (CHD) Thursday filed a motion for emergency relief with the U.S. Court of Appeals for the D.C. Circuit asking the court to stay the Federal Communications Commission’s (FCC) Over-the-Air Reception Devices” (OTARD) Rule Amendment before it goes into effect March 29.
CHD is opposing an amended rule allowing private property owners to place fixed point-to-point antennas supporting wireless service on their property and, for the first time, to extend wireless data/voice services, including 5G, to users on neighboring properties. The rule purports to facilitate fast deployment of mesh Wi-Fi networks, 5G and the ground infrastructure for SpaceX satellites, especially in rural areas.”
USCA Case #21-1075 Document #1890432 Filed: 03/18/2021 [ 31 Pages ]
“Petitioners,” “Children’s Health Defense” or “CHD”), hereby petition the Court for review of Federal Communications Commission (“FCC”) agency action and inaction.”
“Petition filed today, 3/18/2021 = 10 days before the challenged rule amendment goes into effect –– a deadline subject to the Court’s direction –– and Counsel agreed that Movants would file
EMERGENCY MOTION FOR STAY PENDING REVIEW OR IN THE ALTERNATIVE EXPEDITED REVIEW
[ background; see attached 2/26/2021 petition ]
Respondent FCC issued the Order under review on January 7, 2021. The Order amended the so-called “OTARD Rule” (Over-the-Air Reception Devices), which appears at 47 C.F.R. §1.4000.1 Federal Register publication occurred on February 25, 2021. 86 Fed. Reg. 11432. Absent a stay the rule amendments will become effective on March 29, 2021. The Petitioners filed a Petition for Review in this Court on February 26, 2021.
The [OTARD] rule preempts “[a]ny restriction, including but not limited to any state or local law or regulation, including zoning, land-use, or building regulations, or any private covenant, contract provision, lease provision, homeowners’ association rule or similar restriction” including “civil, criminal, administrative, or other legal action of any kind” that “impairs the installation, maintenance, or use of” any “antenna” or “mast supporting such antenna” which meet certain size and use criteria. 47 C.F.R. §1.4000(a)(1)(i)-(iii), (4).
Movants now seek emergency relief from the Court, in the form of a stay pending review or, if necessary an administrative stay long enough for the Court to fully address the motion for stay [pending the litigation]. Consistent with 47 U.S.C. §1657(a) and Circuit Rules 27(f), 47.2(a), Movants request expeditious consideration as necessary to ensure disposition before the rule amendment goes into effect. Finally, in the alternative, and only if a stay is denied, Movants request expedited merits briefing and argument in less time than would ordinarily be allowed, to mitigate the irreparable harm that would occur under the standard procedures used for review of agency decisions.
Nos. 20-1025 and 20-1138 (consolidated), Environmental Health Trust, et al v. FCC, et al and Children’s Health Defense, et al v. FCC et al. involve a facial challenge to the FCC’s general population emissions rules in 47 C.F.R. §1.301- 1.320. The case now before the Court challenges a rule amendment to 47 C.F.R. §1.4000, the so-called “OTARD” rule, but it is not a collateral attack on the general population emissions rules. Rather, it involves persons who would be injured by the amended rule’s elimination of currently-available local, state and federal procedural rights and remedies, and by emissions authorized by 1.4000 that would flow from wireless companies implementing the amendment.
The amended OTARD Rule is unlawful, will irreparably harm Petitioners, and is contrary to the public interest. This Court should stay the Rule pending review.
Given the Court’s calendar, it is unlikely the briefing cycle could be completed, and argument scheduled and conducted before the Court breaks in May. The only option is a special sitting during June. If the judicial stay is denied but expedited merits briefing and argument [are] granted, Movants propose the following schedule:
Other Procedural Motions: April 2, 2021
Certified Index to the Record: April 5, 2021
Dispositive Motions: April 5, 2021
Petitioners’ Principal Brief: April 20, 2021
Respondent’s Brief: May 4, 2021
Petitioners’ Reply Brief: May 18, 2021
Argument in June
- Movants/Petitioners Are Likely to Succeed on the Merits.
- Petitioners Satisfy the Other Requirements for a Stay.
The FCC will not be harmed by a stay. The Commission’s intended beneficiaries are the wireless companies, and they will not be substantially harmed. They have no vested rights to these arrangements. At most they will forgo some additional revenues and profits they would otherwise gain from the rule.
. . .
Ultimately it comes down to whether the Court is willing to countenance absolute devastation of the lives of those who suffer from this condition to marginally benefit some of those who do not.
. . .
The harm to Movants is certain. It will be immediate, severe and irreparable. Their lives will be changed forever. With a stay the Movants and those like them can remain at home and continue under their current conditions.”
[ background; see attached 2/26/2021 petition_CHD v FCC OTARD petition_RFKJr&Scott_02262021 ]
Link To Full Document_CHD v FCC OTARD petition_RFKJr&Scott_02262021