CHD v. FCC — Stopping OTARD
CHD v. FCC Case Filed
On Feb. 26, 2021, the Children’s Health Defense (CHD) filed a new case (called a Petition for Review) against the Federal Communications Commission (FCC) challenging the amendment to the “Over-the-Air Reception Devices” rule (OTARD). The amended rule was adopted by the FCC on 1/7/2021 and will go into effect on 3/29/2021.
CHD’s Petition was joined by four individual petitioners, including a physician and the parents of five children who have been injured by wireless radiation. The case was filed in the US Court of Appeals for the D.C. Circuit.
What is OTARD and Why We MUST Fight it
OTARD will create a “Wireless Wild West” by allowing the installation of wireless transmitting antennas on private homes without requiring any notice to neighboring property owners and by removing any ability to object to their installation.
OTARD will permit private property owners to place fixed point-to-point antennas supporting wireless service on their property and, for the first time, to provide wireless data/voice services, including 5G, to users on neighboring properties by installing “hubs” or “relay” antennas to propagate the signals.
OTARD will likely lead to the most significant and rapid proliferation of 5G, the 1,000,000 SpaceX satellites’ antennas and Wi-Fi mesh networks, both in urban and rural areas, by using homes and private properties for the deployment.
OTARD’s most troubling aspect is that it eliminates all state and local zoning authority over these antennas. No permit is required, restrictive deed covenants and homeowners’ association restrictions, and even state laws are preempted. No notice to neighboring property owners is required; therefore, those who are affected and involuntarily exposed to this harmful radiation will have no right to object to or prevent their installation.
OTARD severely undermines the effectiveness of communities’ and municipalities’ efforts to keep 5G at bay, away from homes and communities. Many homeowners’ associations, municipalities, as well as the Conference of Mayors, objected to the rule. The FCC passed the rule anyway.
OTARD also preempts federal and state civil rights laws that protect the disabled. Those who have already been injured by wireless devices and infrastructure (such as Wi-Fi and cell towers) will not be entitled to accommodation, and families will be forced out of their homes with nowhere to go to escape this harmful radiation.
Our OTARD Case
Robert F. Kennedy Jr., justly described OTARD as a “draconian rule” as it will have overreaching implications. From the moment CHD became aware that the FCC intended to adopt this rule, it was clear to us that allowing it to go into effect without a challenge was not an option.
In April 2020, CHD started its campaign against OTARD by laying the groundwork for a lawsuit when it filed a 22-page letter with the FCC. The letter was joined by a record number of 15,090 people, and a staggering number of them, 6,231, declared that they and/or their children have become injured by wireless radiation.
Over 2,500 people added personal comments, many of them substantive, with heartbreaking testimonials of sickness and death caused by wireless radiation. Parents wrote about their children’s sickness with cancer, radiation sickness, and the aggravating effects of wireless on their children’s autism symptoms and seizures. They are terrified of the devastating effects the adoption of OTARD will have on their lives.
CHD’s suit, filed under the Administrative Procedures Act, asserts that the FCC’s adoption of OTARD violates constitutional rights and upends long-standing common law personal and property rights. It leads to due process violations, is arbitrary, an abuse of discretion, and it passed without authority and statutory jurisdiction.
Emergency Injunction Filed by Children’s Health Defense Against FCC’s OTARD Rule
On March 18, Children’s Health Defense (CHD) filed a motion for emergency relief with the US Court of Appeals for the DC 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 on 3/29/21. The motion is part of CHD’s case that was filed on 2/26/21, challenging the rule amendment.
The focus of the motion for an injunction is the preemption of federal and state civil rights laws that protect the disabled and their rights for accommodations. People who are adversely affected will have no right to object to their installation, even though they will be involuntarily exposed to harmful radiation in their homes.
CHD claimed that if the amended rule goes into effect, they, and any others who develop Radiation Sickness (Electrosensitivity), or other sickness caused/aggravated by wireless technology radiation, may suffer irreparable harm and life-threatening injuries.
The movants include a family physician and mothers of four children who are sick from wireless radiation. The problems are not limited to a small minority but are widespread and growing. CHD’s April letter to the FCC was joined by 6,231 people who declared that they and/or their children are sick from wireless radiation. The estimates are that at least 10% of the population already suffers from symptoms.
CHD argued that Petitioners are likely to prevail on the merits because the amended rule violates substantive and procedural due process rights and that it is contrary to the public interest. Therefore, and because of the imminence of the harm, the Court should grant the stay pending a final decision in the case.
The FCC response is due on 3/23/21, and CHD’s reply to the FCC’s response is due on 3/24/21. The court already assigned a panel of 3 judges to decide on the motion. Judge Judith W. Rogers, Judge Robert L. Wilkins, and Judge Neomi Rao.
On 3/22 at 1 pm PST / 4 pm EDT Children’s Health Defense will hold a press conference regarding the filing of the emergency injunction motion.
Participants in the press conference include CHD’s legal team on this case, Robert F. Kennedy Jr., CHD’s chairman and chief litigation counsel, attorney Scott McCollough and attorney Dafna Tachover, CHD Director of its 5G and Wireless Harms Project.
In accordance with the Court’s order, on 3/23/21, the FCC filed its opposition and 24 hours later, on 3/24/21, the Children’s Health Defense filed its response to the FCC opposition. A decision by the Court is expected before 3/29/21.
View and share the Press Release
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CHD Main Brief
A Question & Answer session about the brief is scheduled for Wednesday, June 30, at 2:30 p.m. EDT (register below).
Among the arguments CHD raised in the brief:
- The rule amendment turns users into wireless carriers but without any regulatory oversight, and therefore the amended rule is oppugnant to the licensing and provider/user regimes intended by Congress.
- The FCC violated the Administrative Procedures Act (APA) by failing to address the concerns that were raised by many municipalities, their telecommunication advisors, HOA-related associations and residents, and to provide significant and sufficient policy reasons to justify the sweeping rule preemptions.
- The focus of CHD’s case is the effect of the amended rule on the children and adults who suffer from Radiation Sickness, or whose conditions are aggravated by wireless radiation. CHD argued that the FCC failed to address “the unrebutted evidence that the amendment would directly lead to catastrophic harm for those who are uniquely or particularly injured by it” and their exposure to such radiation can be regarded as “torture.”
- The rule amendment violates the due process rights of the injured. CHD’s brief states that the FCC rule amendment “lends color of law” to violations of procedural and substantive rights granted by other federal, state, or local laws, including the ADA/FHA and their state equivalents.
- The FCC’s preemptions of disability accommodation laws are inconsistent with the policy behind these laws.
- The Communications Act which gives the FCC its regulatory authority “does not give the FCC the right to sentence innocent people to death without any due process,” and the FCC’s preemption overreach is an “administrative absolutism not congenial to our law-making traditions.”
- The FCC failed to explain why these fundamental American traditions must be swept away in the name of ubiquitous and redundant deployment of broadband service.
- The FCC’s elimination of rights of those who have been injured by this radiation and their treatment as a “barrier” for deployment by the FCC is “purposeful, knowing, calculated and deliberate.”
- The amended rule violates constitutional rights including personal rights and liberties secured by the First, Fourth, Fifth, Eighth, Ninth, and Tenth Amendments and other rights that have been recognized by the Supreme Court as fundamental, and thus protected as well. These include the rights to “life,” “property” and “liberty,” which includes “bodily integrity” and privacy-related rights.
- The OTARD regime leads to a wide range of difficult policy, legal and practical difficulties the FCC did not meaningfully confront: “The Commission gets a gold star for inventiveness. But it failed on the “thinking this through” part.”
Real-Life Example of OTARD Deployment
CHD’s submission includes a real-life example of the effects of the rule amendment. Dr. David Hoffman’s affidavit was filed with CHD’s brief. The affidavit provides photographs of a massive base station antenna structure that were installed in the backyard of his parents’ neighbor. This antenna is authorized by the OTARD rule amendment. His parents have been suffering various health issues as a result, and his daughter, who suffers from Radiation Sickness, can no longer visit them. She developed symptoms every time she visited her grandparents. According to Dr. Hoffman, in return for allowing the antennas’ installation, which includes four powerful transmitting antennas that transmit over a 3–5-mile radius, the neighbor receives free internet service. Because of the amended OTARD rule, Dr. Hoffman and his parents cannot do anything about this irradiation except beg their neighbor to discontinue his agreement with the company, which he did. The neighbor refused. The Hoffman family cannot sue the neighbor or the company for nuisance or for any other property or health-related damage. They cannot even sue for disability accommodations. The rule amendment eliminated all their rights.
Affidavits Filed With The Brief
To support the brief we filed 11 affidavits as follows:
The Administrative Procedure Act requires that the Petitioners prove that they have “standing,” which means that they have a right to sue. It requires (1) compliance with the “Hobbs Act” which means that the Petitioner filed a comment to the FCC rulemaking docket (2) compliance with “Article III,” showing that the petitioners have been injured by the rule. All four4 Individual petitioners filed an affidavit.
CHD had to prove that it has “organizational standing.” It had to show that it (1) complied with the Hobbs Act or that members it represents did (2) suffered injury from the rule (3) has the representational capacity – that it represents its members who otherwise would have had standing to pursue the case by themselves. For that purpose, three of our members filed an affidavit. Dafna Tachover, CHD Director of its 5G and Wireless Harms Project filed the affidavit on behalf of CHD.
Expert Affidavits: Our submission also included three affidavits by experts to support our claims regarding the effects of wireless radiation on people who suffer from Radiation Sickness (electro-sensitivity) and on those whose conditions can be aggravated by exposure:
Professor Riina Bray BASC, MSC, MD, FCFP, MHSC, Medical Director, Environmental Health Clinic, the first hospital clinic worldwide that specializes in radiation sickness
Professor Beatrice Golomb MD PhD, University of California San Diego School of Medicine. Dr. Golomb’s 2018 paper showed that the “mystery sickness” suffered by U.S. diplomats was likely caused by pulsed radio frequencies.
Dr. Toril Jelter MD, a California pediatrician treating 100 patients, including children, who suffer from Radiation Sickness and neurodevelopmental conditions affected by wireless radiation.
In the conclusion of her affidavit on behalf of CHD, Tachover wrote, “With this rule amendment, the FCC harms those who are the most vulnerable and takes away their right to exist, even in their home. The effects of the FCC rule amendment are egregious, and morally and legally unconscionable.” She concluded by quoting Gandhi: “The true measure of any society can be found in how it treats its most vulnerable members.”
Additional Documents filed with the brief:
Addendum Record Reference T1 – provides analysis of the issues raised by comments that were filed to the docket.
Addendum Record Reference T2 – contains quotes of 246 people about their sickness and/or the sickness of their children or other family members from wireless exposure.
Addendum Record Reference T3 – contains the references for the brief footnotes.
We filed a motion requesting to have oral arguments in the case. The FCC’s brief is due on August 23, 2021, and CHD must reply to the FCC’s brief by September 14, 2021. A three-judge panel will be assigned to the case after the conclusion of the briefing stage.
Were You Contacted by Wireless Companies?
People around the country have been reporting they have been offered money in exchange for installing antennas on their homes or property. Some reported that salespeople have been knocking on their doors and others have reported receiving flyers or emails. Here is an example of a flyer we got a hold of:
“Earn $600 – Get paid for doing nothing while helping your community. Be the first person to provide Internet of Things coverage in your neighborhood.”
As part of CHD’s efforts to slow down OTARD antenna deployment, we are tracking the areas in which wireless companies are looking to install antennas on homes. Please complete this form if you have been contacted.
Support Our Efforts to Protect Our Rights, Health, and Children
This new case against OTARD is the second case CHD has brought against the FCC. The first lawsuit was filed in February 2020 and challenges the FCC’s obsolete health and safety guidelines regarding 5G and wireless radiation. That case is now awaiting the decision of the US Court of Appeals of the DC Circuit.
The FCC’s disregard for the public interest and its health is notorious. The two cases CHD has filed are a testament to our commitment to demanding FCC accountability on behalf of the American public and our children. Nothing else except these lawsuits will stop the FCC.
However, these cases are awfully expensive, and we need your support. The first case cost us close to $500,000; this new case against OTARD is estimated at $300,000. We could not wait to raise the money before filing the case because of a strict timeline. We took a risk. Therefore, we are now asking for your support so we can do the best possible job on this crucial case and maximize our chances to succeed.