[00:00:00] Speaker 04: Case number 21-1075, Children's Health Defense et al, petitioners, versus Federal Communications Commission and United States of America. [00:00:09] Speaker 04: Mr. McMullough for the petitioners, Mr. Sherr for the respondent. [00:00:12] Speaker 04: You can remove the mask if you would. [00:00:28] Speaker 00: May please the court. [00:00:29] Speaker 00: My name is Scott McCullum. [00:00:31] Speaker 00: I'm counsel for Petitioner's Children Health Defense in four individual petitioners, Dr. Elliott, Ginger Kessler, Angela Tsang, and Jonathan Mirren. [00:00:42] Speaker 00: Petitioners Kessler and Tsang and CH member Barron each have two young children with debilitating RF-related conditions. [00:00:52] Speaker 00: CHD member has a daughter similarly affected. [00:00:55] Speaker 00: These kids homes are the only relatively safe space for them. [00:01:01] Speaker 00: They could die if a facility authorized by the rule amendment. [00:01:05] Speaker 00: I'll get into an amendment in a minute suddenly appears nearby. [00:01:10] Speaker 00: CHD appears in its organizational capacity representing almost 2000 members who fall comments below 823 of them also have RF related disabilities. [00:01:24] Speaker 00: The FCC contends that these folks have no rights to be protected. [00:01:31] Speaker 00: They must helplessly witness their kids or spouse like Mr Marin's wife being tortured and then frankly exterminated. [00:01:42] Speaker 00: Those who suffer the same conditions, the adults will suffer the same fate. [00:01:48] Speaker 00: We respectfully disagree. [00:01:51] Speaker 00: To put it simply, the Communications Act does not grant the Commission the power to issue a license to kill. [00:01:59] Speaker 00: This court must vacate and remand. [00:02:02] Speaker 00: Now, to the rule. [00:02:05] Speaker 00: The rule in issue, and pardon me if I use an acronym, OTARD, that's the way it's always discussed at the Commission, that's over-the-air receiving device. [00:02:16] Speaker 00: It's in 47 CFR 1-400. [00:02:20] Speaker 00: The commission amended the rule and we are challenging the amendment. [00:02:26] Speaker 00: Originally the rule, and to this day it still does, preempt any state or local law which unreasonably restricts the placement or operation of these protected facilities. [00:02:39] Speaker 00: Under the old rule, people who owned property or had a leasehold interest in property could place consumer end devices [00:02:47] Speaker 00: on their property in order to receive either satellite TV service or fixed internet service. [00:02:55] Speaker 00: It had to be for their primary use. [00:02:58] Speaker 00: It had to be to serve tenants on the premises. [00:03:02] Speaker 05: Not exclusively though, you just said it had to primarily be for serving tenants on the premises. [00:03:07] Speaker 05: So there could be some, I don't know what percentage primarily was, but there could be some additional communication to another [00:03:17] Speaker 00: Yes, the FCC usual term for that is called incidental use. [00:03:22] Speaker 00: and the rules did allow incidental use. [00:03:25] Speaker 00: That was in 2004, and the commission allowed people who had these consumer end devices to put in additional consumer end devices that could provide connectivity to others nearby. [00:03:40] Speaker 00: Point-to-point mesh type service that could incidentally serve a couple of others, but it always had to be incidental, not primary. [00:03:49] Speaker 00: Now the main change to the rule [00:03:52] Speaker 00: isn't necessarily the biggest part of the rule is the type of equipment that is now allowed. [00:04:00] Speaker 00: The commission wants to downplay this, but the actual equipment that it now allows through the amendment is far more powerful equipment. [00:04:10] Speaker 00: Whereas before it had to be consumer end equipment. [00:04:14] Speaker 00: which could emit only pursuant to the much lower emission levels allowed for consumer end or CPE customer premise devices. [00:04:24] Speaker 00: Now, you can have a carrier come in, a private carrier, put in a very, very powerful antenna, much like a cell phone antenna. [00:04:35] Speaker 00: then a base station that can serve thousands of people with the antennas spreading in an omnidirectional manner out a mile or more. [00:04:46] Speaker 00: And so what the commission did was it allowed far more powerful equipment and it removed the primary use requirement. [00:04:55] Speaker 00: Indeed, it flipped it. [00:04:57] Speaker 00: Now the primary use can be to serve anybody nearby up to a mile or two out, however far the attendance go. [00:05:05] Speaker 00: So long as the use for on premise customers is at least incidentally flipped that rule and they allowed more powerful equipment. [00:05:15] Speaker 00: Yeah. [00:05:17] Speaker 00: What are our issues with the way that the commission approaches? [00:05:20] Speaker 05: I just want to ask a question on the standing on the standing. [00:05:25] Speaker 05: And that is you have two of your [00:05:27] Speaker 05: members here, Elliot and Kessler, who had restrictive covenants in their properties or limitations in their properties that prevented [00:05:40] Speaker 05: Either, I think, as to Kessler, the installation of antennas at all, and as to Elliott, at least, anything beyond, anything for commercial use, anything beyond sort of personal use, maybe this incidental exception, I guess. [00:05:53] Speaker 00: Yes, one more question. [00:05:54] Speaker 00: I'm sorry. [00:05:55] Speaker 05: I want to clarify my question, and then I'm interested in what you have to say. [00:05:59] Speaker 05: My question is, with the change in the rule, [00:06:04] Speaker 05: What evidence is there that there's as to Miss Ellie and Miss Kessler that there is a substantial risk that there will be one of these antennas that they can no longer prescribe through their restrictive covenants on their homes in an area that's going to affect them? [00:06:27] Speaker 00: If I understand your question correctly, were you asking the extent to which the change in the rule will affect restrictive covenant? [00:06:35] Speaker 05: No, I get that those are displaced, but if they're displaced, it doesn't hurt them unless one of these antennas comes up near them. [00:06:44] Speaker 05: So what evidence is there in the record of a risk, a substantial risk that [00:06:50] Speaker 05: now with those restrictive covenants no longer enforceable that in fact, um, antennas will come up near them in a way that will affect them. [00:07:02] Speaker 00: In the briefing, when the commission challenged the standing of, of the petitioners, uh, as we explained the petitioner, um, Hoffman, uh, actually it's one of the declarants. [00:07:14] Speaker 00: Mr. Hoffman, um, already has, [00:07:17] Speaker 00: a new otard, the new rule type antenna right next to him. [00:07:26] Speaker 05: Um, they had the service providers to the two with restrictive covenants, Elliott and Kessler. [00:07:31] Speaker 05: What evidence was there for them where they live? [00:07:33] Speaker 05: Because communities are different that this was going to happen near them. [00:07:38] Speaker 00: Based on the record before you in the standing evidence, we were not able to establish that one is near either of them. [00:07:47] Speaker 00: The rule, however, removes their restrictive covenant rights. [00:07:50] Speaker 05: I wanted to ask you to show that there is one. [00:07:52] Speaker 05: I want you to tell me how there's a substantial risk that there will be one. [00:07:57] Speaker 00: Well, the commission itself touted the extent to which this rule was going to be used. [00:08:03] Speaker 00: As it explains, Starry alone, almost a million customers, many other service providers will take advantage of this rule. [00:08:12] Speaker 00: There is clearly a substantial risk [00:08:15] Speaker 00: that one of these will show up unannounced without notice and thereby affect the taking of the restricted covenant, right? [00:08:27] Speaker 02: Without notice. [00:08:29] Speaker 02: I beg your pardon? [00:08:30] Speaker 02: Without notice? [00:08:31] Speaker 02: Without notice. [00:08:33] Speaker 02: Does the company that is erecting the tower have to get permission from the FCC before doing that? [00:08:42] Speaker 00: no site-specific requirements. [00:08:46] Speaker 00: Right. [00:08:47] Speaker 00: And a lot of it depends on which frequencies are being used, some of which are fully licensed. [00:08:53] Speaker 00: If that is the case, then they have to get the license or the radio station authorization for the emissions. [00:09:00] Speaker 02: Is that because of the problem of interference? [00:09:04] Speaker 00: Essentially, it is all about the interference, the specific placement. [00:09:08] Speaker 00: is not regulated by the FCC here unless the tower gets so tall that it must be registered in order to protect against airlines. [00:09:18] Speaker 02: That's another question I have. [00:09:19] Speaker 02: It's 12 feet above the roof line, right? [00:09:24] Speaker 02: How do you measure the roof line? [00:09:25] Speaker 02: We've got a community, some of which have three-story houses and others of which have one-story ranchers. [00:09:34] Speaker 02: call them in Texas, too, I think. [00:09:37] Speaker 02: Uh, what's where's the route? [00:09:38] Speaker 02: Which is the roof line? [00:09:40] Speaker 00: My understanding it is the roof line of the specific house or building that on which the structure will be built. [00:09:48] Speaker 00: And so if it is a three story building, then it would be the 12 foot exception for minimal local safety regulations would be 12 ft above the third school door on the single story. [00:10:00] Speaker 00: Then it would be 12 ft above the single [00:10:03] Speaker 02: If it's 12 foot above, does that change the FCC's involvement in any way? [00:10:09] Speaker 02: I beg your pardon? [00:10:10] Speaker 02: If it's more than 12 feet, no matter how we measure it, how does that change if at all the FCC's involved? [00:10:19] Speaker 00: Well, the 12 foot exception is very little. [00:10:23] Speaker 00: First of all, it doesn't appear in the rule. [00:10:25] Speaker 00: The commission expressed this as a limited exception in one of its orders before this rule was changed. [00:10:33] Speaker 00: But what it basically allows is a very small amount of local safety regulation. [00:10:40] Speaker 00: They still cannot regulate placement. [00:10:42] Speaker 00: They still cannot require a permit. [00:10:46] Speaker 00: Indeed, before they can even enforce the safety regulations that the commission touts in its brief, they have to have previously promulgated an ordinance that specifically listed which safety regulation [00:11:01] Speaker 00: every job in total. [00:11:02] Speaker 02: The antennas that we're talking about are attached to houses or buildings. [00:11:08] Speaker 00: Is that right? [00:11:09] Speaker 00: Some of these can be attached to houses. [00:11:11] Speaker 00: Some of them can be free standing towers in a yard, much like the images that we gave you from Mr. Hall. [00:11:18] Speaker 02: I want to pick up on one other question or one other assertion that you made that there doesn't need to be any notice. [00:11:25] Speaker 02: The rule we're talking about is on page [00:11:30] Speaker 02: Yeah, 23, right? [00:11:32] Speaker 02: Yes, doesn't say anything about preempting notice. [00:11:36] Speaker 00: Well, it does not require notice. [00:11:40] Speaker 00: There is no specific requirement for notice. [00:11:43] Speaker 02: If there's a notice requirement in in a homeowners Association to build any kind of structure or in or a zoning rule in a town or a county or see even a statewide requirement. [00:11:58] Speaker 02: Where is it in the rule that would [00:12:01] Speaker 02: preempt all those notice requirements. [00:12:05] Speaker 00: The commission has declared, and I'm sorry, I don't have a site for you, but I could provide a post argument. [00:12:10] Speaker 00: The commission has in fact already preempted some local ordinances that required notice for various things. [00:12:18] Speaker 02: Well, there's partial preemption. [00:12:20] Speaker 02: Maybe when the commission says we preempted, they're not erasing the statute or the ordinance. [00:12:27] Speaker 02: All they're doing is asserting the authority that they have through the regulation and statute. [00:12:33] Speaker 02: And if there's nothing in there that preempts a notice requirement, forget about citing a notice requirement. [00:12:40] Speaker 02: I don't see where you get the idea that notice is preempted. [00:12:44] Speaker 02: And I must say that on page 38 of the commission's brief, they make the assertion too. [00:12:50] Speaker 02: And I don't find any support for that at all. [00:12:53] Speaker 00: But the rule is not expressed in this regard, but in the past decisions where the commission has said, even under the old rule, when somebody had satellite dish, for example, that localities could not require notice. [00:13:05] Speaker 00: The commission said that it was an unreasonable restriction because it impeded the ability and delayed the ability to install. [00:13:13] Speaker 00: Therefore it was an unreasonable. [00:13:14] Speaker 05: I thought they had only preserved safety regulations. [00:13:17] Speaker 05: Is that right? [00:13:18] Speaker 05: The only thing they preserved was safety regulations. [00:13:21] Speaker 00: This rule, according to some of the Commission precedent, allows a locality to impose a very limited amount of safety regulation. [00:13:30] Speaker 05: Only safety. [00:13:31] Speaker 05: Only safety. [00:13:32] Speaker 00: Only basically the safety codes, electrical code, building code, and only to the extent... Is notice part of the safety code? [00:13:40] Speaker 00: Building code, electrical code, fire code. [00:13:42] Speaker 05: Is notice part of the safety code? [00:13:44] Speaker 00: Sometimes it is, but my understanding and belief is that the commission would say that this notice requirement. [00:13:50] Speaker 02: Well, we don't know that, and it's not on the faces. [00:13:52] Speaker 02: This is a facial attack on the regulation amendment on page JA-23. [00:14:00] Speaker 02: And there's nothing on the face of the regulation, and you admit this candidly, that preempts anything other than sighting. [00:14:10] Speaker 00: It even for him site all that it all that it allows is a minimal amount of safety regulation in the form of electrical bar. [00:14:17] Speaker 02: I don't. [00:14:19] Speaker 02: We're in it. [00:14:20] Speaker 02: Go to go to page J.A. [00:14:22] Speaker 02: 20th. [00:14:24] Speaker 02: And tell me what language as that as that. [00:14:31] Speaker 00: It does not appear in a rule similar to the 12 foot exception. [00:14:35] Speaker 00: Right. [00:14:36] Speaker 00: But the commission has the past under the old rule. [00:14:39] Speaker 00: preempted municipal regulations that tried to. [00:14:42] Speaker 02: If the old rule does that, and I don't know whether it does, then what's that got to do with the amendment that you're attacking? [00:14:51] Speaker 00: Because of the new equipment that is allowed with this new, very powerful equipment that goes very much further and impacts far more people. [00:15:01] Speaker 00: There is a whole new class of people who pre-amendment would have received notice under their local zoning code. [00:15:09] Speaker 00: or would have been protected by a restrictive covenant. [00:15:13] Speaker 00: Now with the change, all of that local protection goes away. [00:15:19] Speaker 00: The commission will contend that is because they're now commercial use including the commercial use and including the no wireless towers. [00:15:27] Speaker 05: I see that. [00:15:28] Speaker 05: I'll give you some time for rebuttal. [00:15:30] Speaker 05: But when another thing that you asked in response to a judge Randolph, you said in response to judge Randolph's questions on whether note what kind of notice to the FCC is required. [00:15:40] Speaker 05: You said if it's a certain level frequency, they may have to be licensed. [00:15:44] Speaker 05: But I had understood from your brief that [00:15:47] Speaker 05: I don't know if with some or many of these antennas, some portion of these antennas would not require notice to the FCC or a license from the FCC at all. [00:15:57] Speaker 00: That is correct. [00:15:58] Speaker 00: The so-called unlicensed frequencies. [00:16:01] Speaker 05: So there's no notice to the FCC that they're coming in. [00:16:04] Speaker 00: That is correct. [00:16:04] Speaker 05: And the notice provisions, if we take FCC at its word, that's its position. [00:16:11] Speaker 05: Those are also preempted. [00:16:13] Speaker 05: So that's the source of your concern about lack of notice. [00:16:15] Speaker 00: Absolutely. [00:16:16] Speaker 00: As a consequence, people will not know when one of these is about to show up so that they can deal with it however they otherwise would have. [00:16:24] Speaker 00: Nor is there any ability to find where they are in order to ensure that their emissions even under the new rule are FCC compliant. [00:16:35] Speaker 00: There's simply no way to find out where these things are, where they will be when they're coming. [00:16:40] Speaker 00: And the petition is here. [00:16:41] Speaker 00: The only way they will know is when their Children begin to get sick again after they already fled to find some workplace. [00:16:48] Speaker 05: My colleagues have any more questions. [00:16:52] Speaker 05: All right. [00:16:53] Speaker 05: Thanks. [00:16:53] Speaker 05: We will give you some rebuttal time. [00:16:54] Speaker 00: Thank you. [00:17:07] Speaker 03: Good morning. [00:17:08] Speaker 03: May it please the court, Bill Shearer on behalf of the Federal Communications Commission. [00:17:13] Speaker 03: I'd like to start by addressing Judge Millett's question about standing. [00:17:18] Speaker 03: You asked whether there was any shelling of substantial risk of harm in connection with the private restrictions. [00:17:26] Speaker 03: And our point in our brief is basically that in order to make a determination about whether there's a substantial risk under this court's case law, [00:17:36] Speaker 03: the Food and Water Watch case, the Public Citizen case, you have to be able to compare the risk under the new rule to a baseline of what the old rule, what the risk was under the old rule. [00:17:48] Speaker 03: And petitioners in their briefing don't acknowledge the scope or history of the old rule in that it covered HUBBA relay antennas. [00:17:59] Speaker 05: What was primarily? [00:18:01] Speaker 05: They had to be primarily for customer use. [00:18:05] Speaker 05: Um, and the FCC made the considered decision that that restriction was a barrier to development of these types of communications abilities, a significant barrier and that eliminating that would open up [00:18:29] Speaker 05: development and expansion of these capabilities in very important ways to allow better access and remote areas, areas that have been underserved to meet the, I think you had numbers about the exploding demand for this. [00:18:48] Speaker 05: So it seemed to me that FCC itself anticipated that this was going to produce substantial proliferation of these [00:18:56] Speaker 05: antennas. [00:18:57] Speaker 05: Is that am I incorrect in understanding that? [00:18:59] Speaker 03: No, I think you're correct, Your Honor. [00:19:01] Speaker 03: The rule previously. [00:19:03] Speaker 05: Tenfold? [00:19:04] Speaker 05: Twentyfold? [00:19:05] Speaker 05: How much more are you anticipating? [00:19:07] Speaker 03: I don't have an estimate. [00:19:09] Speaker 03: I think that the commission certainly expected that it would... Lots? [00:19:13] Speaker 03: Lots, that it would contribute. [00:19:15] Speaker 03: Lots and lots. [00:19:16] Speaker 05: I think that the principle... We've got to get these things out there. [00:19:21] Speaker 03: Right, your honor. [00:19:22] Speaker 03: And I think that the commission anticipates that by removing uncertainty about the scope of the old rule and the meaning of the primary restriction. [00:19:29] Speaker 05: The primary restriction, the primarily customer use restriction, not just, I mean, it's getting rid of that. [00:19:36] Speaker 03: Your honor, I think that the use, the restriction before was that the antenna not be primarily intended for use as a hub. [00:19:47] Speaker 03: So there is no commission case law about. [00:19:51] Speaker 05: Oh, that it be primarily used for customer service on that area. [00:19:57] Speaker 05: Yes. [00:19:57] Speaker 05: That's a different formulation. [00:19:59] Speaker 03: It's absolutely true that the commission removed the primary use restriction. [00:20:05] Speaker 03: And so antennas are no longer required to be primarily intended for customer use. [00:20:15] Speaker 03: There remains a restriction that each antenna that's on a premises has to be used by the customer to receive a signal. [00:20:26] Speaker 02: We're talking about antennae that are designed to receive signals. [00:20:34] Speaker 02: Are we also talking about antennae that transmit signals or relay signals? [00:20:39] Speaker 03: Yes, Your Honor. [00:20:40] Speaker 03: Part of the reason for the Commission's decision was that these antennas, as wireless [00:20:47] Speaker 03: technology evolves are multipurpose. [00:20:50] Speaker 03: So the same way that a personal computer can be used as a word processor, as a gaming device to watch video, these antennas increasingly have multiple functions and they can be used to receive and they can be used to transmit and they can be used to relay. [00:21:05] Speaker 03: A big part of the reason that the commission eliminated the restriction was because it concluded that it was obsolete, that it didn't make sense when you're talking about [00:21:14] Speaker 03: multiple feature antenna to talk and the function is what a video. [00:21:21] Speaker 02: And what else? [00:21:26] Speaker 03: The purposes of the rule change, the rule change covers antennas that are used for broadband only. [00:21:33] Speaker 03: So it's fixed wireless that's being used for wireless internet, not for voice, not for mobile, but specifically for broadband. [00:21:42] Speaker 03: And the commission explained that the [00:21:44] Speaker 03: broadband only antennas by covering those. [00:21:47] Speaker 03: It's serving the original purpose of section 207 in which Congress directed the commission to adopt this rule because customers increasingly stream video programming over the internet and that rule was originally meant to increase consumer access to video programming. [00:22:04] Speaker 01: What do we know about [00:22:09] Speaker 01: the likely strength of these antennas. [00:22:15] Speaker 01: Your friend on the other side makes at least a plausible argument that when you move from an antenna that's primarily receiving for use on site by the building owner, [00:22:34] Speaker 01: to antenna that are primarily transmitting and incidentally used for local use, the new antennas will likely be much stronger. [00:22:50] Speaker 03: Your honor. [00:22:52] Speaker 03: I can't speak to what the power of the antennas will be. [00:22:57] Speaker 03: The rule change was to eliminate the primary use restriction, but the commission did not change any of the other restrictions of the rule. [00:23:07] Speaker 03: So it continues to require that this equipment be used by customers to receive service, and it continues to place size restrictions [00:23:17] Speaker 03: on the antenna. [00:23:18] Speaker 03: So my understanding, generally speaking, is that fixed wireless antennas operate point to point and point to multi-point. [00:23:31] Speaker 03: They often operate on higher frequencies where the signals don't propagate very well. [00:23:37] Speaker 03: And they have to be located relatively small distances from one another. [00:23:44] Speaker 03: My understanding is that they generally don't operate omnidirectionally and they generally don't have [00:23:52] Speaker 03: reaches of one to three miles. [00:23:55] Speaker 03: But the commission's rule change didn't address the power of the devices. [00:24:01] Speaker 03: But again, my understanding is that what we'll see, what the commission anticipates seeing is more rapid deployment of the kind of antennas that would have been covered. [00:24:12] Speaker 02: Is there any indication that there's some opportunity for local communities to have [00:24:20] Speaker 02: regulations, not for the purpose of regulating the frequency or regulating the intensity of the signal, but because they're ugly. [00:24:30] Speaker 02: And we don't want them in our town because they are aesthetic reasons. [00:24:36] Speaker 03: Your honor, the rule [00:24:40] Speaker 03: age prohibits unreasonable restrictions on antenna deployment and placement. [00:24:48] Speaker 03: And unreasonable means it completely prevents the placement of the antenna or delays it or increases its costs. [00:24:58] Speaker 03: And so the [00:25:01] Speaker 03: There's there is commission case law. [00:25:03] Speaker 03: There are commissions decisions and interpreting that reasonableness standard and those that standard leaves room for communities to to regulate with respect to aesthetic standards with respect to. [00:25:16] Speaker 03: The site of an antenna on a customer's property with respect to radio frequency, radiation safety, as long as the restrictions are within the commission's limits. [00:25:27] Speaker 03: The restriction is that they not be unreasonable. [00:25:30] Speaker 03: So, for instance, the commission has said that a requirement that antennas be painted so that they blend in with their surroundings. [00:25:39] Speaker 03: can be reasonable so long as it doesn't increase the cost of the antenna to such an extent that it's unaffordable or prevent its placement. [00:25:49] Speaker 02: Is it true that an antenna pursuant to this amended regulation can be erected without any notice to the homeowners association? [00:26:04] Speaker 03: Your honor, with respect to notice, the commission has held that under the rule itself, I'm leaving aside the safety exception, but with respect to the rule itself, the commission has held that prior approval requirements cause unreasonable delays. [00:26:21] Speaker 02: I'm not talking about prior. [00:26:22] Speaker 02: But a notice requirement may be. [00:26:25] Speaker 02: It is a phenomenon that I think I'm aware of and [00:26:31] Speaker 02: I'm not testifying here. [00:26:33] Speaker 02: What often happens is that when the homeowners association gets wind of a tower going up, even though that association has no authority to approve or disapprove the tower, they can take action by mobilizing people and petition whoever has the authority under the First Amendment or right to try to stop the project. [00:27:00] Speaker 02: Regardless whether they have the authority to stop it, all I'm asking is how are they going to know that the tower that's going up, that there is a tower that's going up? [00:27:16] Speaker 03: If the safety exception to the rule applies and the safety exception... I'm not talking about safety, I mean aesthetically. [00:27:25] Speaker 03: The aesthetics, under the rule, there is room for aesthetic standards. [00:27:31] Speaker 03: The commission in its case law so far has ruled that prior approval requirements, so notice to the community prior to the erection of an antenna or a tower, cause unreasonable delay. [00:27:43] Speaker 05: So just notice is a form [00:27:46] Speaker 05: Your example just said prior notice is prohibited. [00:27:51] Speaker 03: Prior notice under the commission's case law has been prohibited except with respect to the safety exception. [00:27:58] Speaker 03: So if I want to put up a tower or a mast on my property to support an antenna that's covered by the rule and it's more than 12 feet above the roof line, then the safety exception would allow for... As long as they're within, as long as it's not, it's 12 feet. [00:28:17] Speaker 03: I think yes, so it's so it is within the no notice. [00:28:21] Speaker 03: Correct. [00:28:22] Speaker 03: No prior notice, but notice. [00:28:24] Speaker 02: That's not is that a result of the amended rule. [00:28:29] Speaker 03: No, your honor, it's not. [00:28:30] Speaker 03: It is not a change in the rule. [00:28:31] Speaker 03: The commission was very clear that it didn't change any aspect of the rule other than this primary use restriction. [00:28:37] Speaker 03: That is an interpretation. [00:28:39] Speaker 05: Yeah, but the volume of these things they're going to put up and the power that they're using are going to expand enormously. [00:28:45] Speaker 05: What they've said is under the old rule with the requirement that it be used primarily for customer usage, with their homeowner restrictions, this is their allegations, I'm just repeating them, they've been able to control it and prevent it being put in. [00:29:01] Speaker 05: Now that there is no, because they have restrictions against commercial uses. [00:29:06] Speaker 05: And now that's gone and that's preempted. [00:29:10] Speaker 05: And these can come in without any notice. [00:29:12] Speaker 03: First of all, Your Honor, two things. [00:29:14] Speaker 03: I think that there is no evidence in the record and there's nothing in the commission's order to indicate that significant increases in power of the devices are going to be a result of this rule change. [00:29:28] Speaker 05: The number of them surrounding them, they don't need more power. [00:29:31] Speaker 05: There's a number of them surrounding them. [00:29:33] Speaker 05: Even one that's not that powerful, it's right next door, which before they could prohibit. [00:29:38] Speaker 05: And now they can't even have notice of [00:29:40] Speaker 05: can affect them. [00:29:41] Speaker 05: So put aside the frequency. [00:29:43] Speaker 05: I'm assuming the ones here that the power is unlike, it's at the level it's unlike. [00:29:49] Speaker 03: Your honor, I don't think it's true that before they could contest, even under the private restrictions, that they could contest the placement of an antenna based on exposure to radio frequency energy from the antenna. [00:30:03] Speaker 05: Based on commercial usage. [00:30:06] Speaker 05: It's for commercial usage, it's not primarily for the use of the homeowner. [00:30:11] Speaker 05: They could contest it on that ground. [00:30:12] Speaker 03: Your Honor, under the prior rule. [00:30:14] Speaker 05: They could, right? [00:30:15] Speaker 05: They could, at least on the record. [00:30:17] Speaker 05: We don't know more than what the record is in their affidavits. [00:30:19] Speaker 05: They have these restrictions that limited [00:30:22] Speaker 05: One limited antenna is all together. [00:30:25] Speaker 03: No, Your Honor, I think the answer is no. [00:30:27] Speaker 03: So even if an antenna prior to the rule change was intended primarily for commercial use, so it wouldn't be covered by the rule, if a homeowners association wanted to prevent the arrest of an antenna, [00:30:42] Speaker 03: on the basis of radio frequency energy from that antenna? [00:30:46] Speaker 05: No, they don't. [00:30:47] Speaker 05: I'm going to say this again. [00:30:48] Speaker 05: Their homeowner restriction prevented it because they didn't want commercial uses of devices on their property, of things erected on the property for commercial purposes. [00:31:01] Speaker 05: That's what they prohibit. [00:31:03] Speaker 05: That's what is now preempted. [00:31:05] Speaker 05: Don't talk to me about radio frequency. [00:31:06] Speaker 05: I'm talking about commercial usage. [00:31:09] Speaker 03: I don't believe that the private restrictions that are in the record speak specifically to commercial uses. [00:31:19] Speaker 05: Okay, if I read it differently, just take it as a hypothetical. [00:31:25] Speaker 05: That would be preempted. [00:31:26] Speaker 03: Yes, absolutely. [00:31:27] Speaker 05: And no notice, assuming it's not a license level. [00:31:30] Speaker 05: Yes, that's correct. [00:31:31] Speaker 05: No notice at all. [00:31:31] Speaker 03: That's correct. [00:31:33] Speaker 05: How do you, now I just have a practical question. [00:31:37] Speaker 05: Take your radio frequency exposure limits that you have. [00:31:44] Speaker 05: And as more of these antenna are out there, let's just say they're multiplied by five as a result of the rule, then exposure limits would increase, would they not? [00:31:58] Speaker 03: No, Your Honor, the exposure limits [00:32:03] Speaker 05: I don't mean the limits would increase. [00:32:04] Speaker 05: What someone is exposed to, if I'm exposed to one antenna, there's a certain amount, if I have, this is very hypothetical, but if I have antenna on all four sides of me, all of them doing it, then what I'm exposed to is going to increase. [00:32:19] Speaker 05: It may not exceed your limits, but it's going to increase the amount of exposure. [00:32:24] Speaker 03: That's not necessarily true. [00:32:26] Speaker 03: The amount of exposure varies according to power, to the frequency, to the proximity, to the equipment. [00:32:33] Speaker 05: Four times exposure is not more than a single exposure is what you're telling me. [00:32:40] Speaker 05: If I have a circle of these antennas surrounding me, all operating simultaneously at an unlicensed level, I am not exposed to any more [00:32:52] Speaker 05: radio frequency than if there was just one? [00:32:56] Speaker 05: Is that your answer? [00:32:57] Speaker 03: I can't, I can't, I don't want to speak to that. [00:33:00] Speaker 03: I don't think that, I don't know. [00:33:01] Speaker 03: I don't want to answer that, but the answer under the commission's radio frequency exposure limits is that the limits create- I'm asking you a fact question about how these things work. [00:33:10] Speaker 05: That if I'm surrounded by [00:33:15] Speaker 05: Mr. Chaffert, however many takes to get around me, am I exposed to more? [00:33:18] Speaker 05: It may still well be within the limits. [00:33:20] Speaker 03: Yeah, possibly, but it would have to be within the limits. [00:33:24] Speaker 05: I'm not questioning your limits here. [00:33:26] Speaker 05: What I'm asking is just the fact question. [00:33:28] Speaker 05: There's more. [00:33:29] Speaker 03: I would assume so, Your Honor. [00:33:32] Speaker 03: I'm not an expert or an engineer. [00:33:34] Speaker 02: I would make that assumption on the basis of physics. [00:33:37] Speaker 02: And if I have 15 objects that are [00:33:40] Speaker 02: transmitting waves at a certain deci... It doesn't mean that it's 15 times louder than it would be if only one of them was transmitting. [00:33:54] Speaker 03: So I'm not sure that's... And I don't know either, Your Honor, and I just want to make the point that the Commission's radiofrequency exposure limits govern [00:34:05] Speaker 03: I'm not asking about that, I'm just asking. [00:34:07] Speaker 05: What I'm trying to figure out is if there's no notice to the FCC of where these things are, how does someone figure out if the exposure limit has gone up or not? [00:34:19] Speaker 05: I don't want to use the word limit. [00:34:21] Speaker 05: What someone is exposed to is increased, even if it's still within, you know, your range is here and they're still here. [00:34:26] Speaker 03: The service providers are responsible for compliance with the commission's radio frequency. [00:34:32] Speaker 03: They don't know who else is putting and service providers and all carriers have responsibility under the commission's radio frequency exposure limits to maintain. [00:34:42] Speaker 03: levels that are within the commission's limits, even for multiple source devices. [00:34:46] Speaker 03: So if you're standing in a spot and there's 10 different sources of radiation and all of the carriers and service providers that are contributing to that are responsible to ensure that the... How do they do that if they don't have, there's no notice anywhere? [00:35:01] Speaker 05: As to where these other antennae are. [00:35:04] Speaker 05: It could be in someone's backyard behind a tree. [00:35:05] Speaker 03: The provider would have to ensure that installation was consistent with the radio frequency exposure limits in order to be able to install it in the first place. [00:35:14] Speaker 03: And notice requirements are acceptable as long as they're not prior approval. [00:35:19] Speaker 05: No, an individual one will not exceed the limit, but if the collective impacted. [00:35:25] Speaker 03: I believe your honor that a service provider would be responsible before installing the antenna to ensure compliance with the radio frequency. [00:35:32] Speaker 05: How would they do that if there's no notice of these other ones? [00:35:34] Speaker 05: This is the practice. [00:35:35] Speaker 03: Well, the service provider has to work with the customer. [00:35:39] Speaker 03: The customer has exclusive control of the property. [00:35:42] Speaker 03: And so it knows where it's putting the antenna and it would have to ensure that by putting the antenna there, it wasn't creating exposure risks beyond the commission's limits. [00:35:53] Speaker 02: And so if a tower goes up and I'm the next door neighbor and I think it's ugly, what is my recourse that is, you know, I took a look at the zoning restrictions and they say, you know, no tower shall go up without approval of the local zoning commission or whatever. [00:36:17] Speaker 02: So what's my recourse as a neighbor? [00:36:20] Speaker 02: that I don't want to have to stare out of my picture window at some ugly town. [00:36:26] Speaker 03: Well, your honor, the again, the commission didn't change anything about the rule except for the primary use restriction and the rule allows for reasonable restrictions. [00:36:39] Speaker 02: Do I go to the do I go to the FCC to complain? [00:36:42] Speaker 03: Yes, well, if you believe that there's an issue about coverage of whether the rule covers a particular device, there's a declaratory ruling process with the commission and courts to determine whether something's covered by the rule. [00:37:00] Speaker 03: But you could go to your local zoning authority, and you could say someone's put up a mast with a supporting antenna. [00:37:10] Speaker 03: you know, it's ugly and I believe, and I want it removed. [00:37:12] Speaker 03: And then it would be up to the local authority to decide whether that was something that needed to be removed or whether it was something that was subject to reasonable restrictions. [00:37:23] Speaker 03: And someone could go to the FCC to obtain a decision about whether- You're not here saying that a local zoning board could order antennas removed? [00:37:33] Speaker 05: Is this as part of their aesthetic? [00:37:36] Speaker 05: Are you? [00:37:37] Speaker 05: Are you saying that local zoning missions retain the authority to order these antenna removed because they're ugly? [00:37:51] Speaker 03: If it's a reasonable... Is it a reasonable? [00:37:56] Speaker 05: You told me unreasonable things are things that increase costs or prevent it from happening. [00:38:00] Speaker 05: So now you're suggesting to Judge Randolph that maybe they could order them removed. [00:38:05] Speaker 05: If that's a very important concession, if that's what you're saying, could it be removed, ordered removed by a local board without any preemption? [00:38:15] Speaker 05: Removed because of aesthetics, not safety. [00:38:17] Speaker 03: No, I think not, Your Honor. [00:38:19] Speaker 03: I think they would have some authority to... That's not an answer then. [00:38:25] Speaker 03: I think that I'm out of time, Your Honors. [00:38:27] Speaker 05: Are there any other questions? [00:38:29] Speaker 05: Thank you. [00:38:34] Speaker 05: Mr. McCullough, we'll give you two minutes. [00:38:46] Speaker 00: Thank you, Your Honor. [00:38:46] Speaker 00: I'd like to address two issues with my remaining time. [00:38:49] Speaker 00: The first is a standing issue on food and water watch. [00:38:53] Speaker 00: We do not have to show an increased risk of harm, and that is because this rule regulates us directly. [00:39:01] Speaker 00: The food and water watch case that deals with people who were where there's a rule that regulates the third party and those who are claiming harm have to show an increased risk of harm because of this third party activity. [00:39:12] Speaker 00: If you look at this rule, [00:39:13] Speaker 00: It regulates the petitioners and the local jurisdictions directly. [00:39:18] Speaker 00: It does not say these providers can just put up a towel. [00:39:22] Speaker 00: It says there can be no restriction. [00:39:25] Speaker 00: And that is what preempts all of the laws and rules and contracts that we're talking about here. [00:39:30] Speaker 00: Food and Water Watch doesn't apply to us. [00:39:32] Speaker 01: How does that regulate the individual petitioners directly? [00:39:42] Speaker 01: For example, if we have- You're a neighbor to someone who was allowed to put up an antenna, that might certainly be a cause for concern, but it's not a regulation on the neighbor. [00:39:59] Speaker 00: It is if I have a restrictive covenant because that's been deemed to be an unreasonable restriction and it goes away directly by the rule. [00:40:07] Speaker 00: The rule operates directly against the petitioners and state and local jurisdictions. [00:40:12] Speaker 00: Now, let's talk about it. [00:40:15] Speaker 01: So your best theory of standing is preempting the contract rights or the covenants. [00:40:22] Speaker 00: Directly takes away your contract rights, and there is no right to obtain a full recovery under the Tucker Act. [00:40:28] Speaker 00: Because, Randolph, I know that's one of the issues that you've addressed. [00:40:31] Speaker 02: What? [00:40:31] Speaker 02: How is it, wait, contract rights? [00:40:35] Speaker 00: Well, a restricted covenant is a form of a contract, along with being something that you have as- Oh, I see what you're saying. [00:40:41] Speaker ?: Yes. [00:40:42] Speaker 00: Now let's, let's talk about what's really going on here in the commission. [00:40:46] Speaker 05: You got, you got, I'm going to give you one sentence because your time is up. [00:40:49] Speaker 00: So we're talking really, really ugly, powerful intent is authorized by this rule. [00:40:55] Speaker 00: Instead of a porch light, we're talking about stadium lights that he meant for out to a mile. [00:41:01] Speaker 00: Instead of a TV speaker, we're talking about a large rock band playing in a stadium with people who can hear it out to a mile. [00:41:11] Speaker 00: consumer end equipment, not very powerful, but lower emissions. [00:41:17] Speaker 00: This rule directly allows for carrier base stations with up to three times the power level. [00:41:23] Speaker 00: Story plans to put up to three base stations at each location, serving 12,000 households within a one mile, 350 mile direction. [00:41:33] Speaker 00: They could not do that under the old rule. [00:41:36] Speaker 00: That is a material change. [00:41:37] Speaker 05: Thank you very much.