The FCC today expanded the coverage of its rule for over-the-air reception devices (OTARDs)—which prohibits state, local government, and home owner association laws or rules impairing consumers’ ability to install, maintain, and use OTARDs—to include "hub and relay antennas that are used for the distribution of broadband-only fixed wireless services to multiple customer locations, regardless of whether they are primarily used for this purpose, provided the antennas satisfy other conditions of the rule."
Specifically, the OTARD rule now "applies to all hub and relay antennas that are used for the distribution of fixed wireless services to multiple customer locations, regardless of whether they are ‘primarily’ used for this purpose, as long as: (1) the antenna serves a customer on whose premises it is located, and (2) the service provided over the antenna is broadband-only," the FCC said in a report and order adopted yesterday and released today in WT docket 19-71.
In 2004, the FCC had ruled that the OTARD rule applied to hub and relay antennas installed to serve the customer on the premises of the installation but not to hub and relay antennas designed as hubs to serve multiple customer locations.
In 2018, the Wireless Internet Service Providers Association asked the FCC "to update the OTARD rule to apply to ‘all fixed wireless transmitters and receivers, regardless of whether the equipment is used for reception, transmission, or both, so long as the equipment meets the existing size restrictions for customer-end equipment,’" the FCC recalled in today’s order.
In 2019, the Commission adopted a notice of proposed rulemaking that sought input on expanding the OTARD rule to cover hub and relay antennas used to transmit signals to and/or receive signals from multiple customer locations (TR Daily, April 12, 2019).
Last fall, the FCC circulated a draft report and order to update the OTARD rule to align with recent trends in fixed wireless technology and to accelerate the deployment of competitive fixed wireless services to consumers (TR Daily, Nov. 30, 2020).
"Our order here does not modify any other aspects of the current OTARD rule. Thus, the rule’s requirements that antennas must be less than one meter in diameter or diagonal measurement, that they apply to property ‘where the user has a direct or indirect ownership or leasehold interest,’ and that restrictions necessary for safety and historic preservation are excepted, remain in place," the FCC said in today’s order.
This action places "fixed wireless broadband-only service providers on similar competitive footing with other service providers. This rule change should allow fixed wireless service providers to bring faster Internet speeds, lower latency, and advanced applications—like the Internet of Things, telehealth, and remote learning—to all areas of the country, and to rural and underserved communities in particular," the order said.
It also noted that the record indicates the rule change will "enable consumers to access competing video programming providers. Consumers increasingly stream video services over the Internet, instead of consuming such programming through traditional video programming services such as cable or broadcast."
"We find the opponents’ arguments unpersuasive. First, we continue to recognize property owners’ rights under the OTARD rule. Because we maintain the ‘exclusive use or control’ and ‘direct or indirect ownership or leasehold interest’ restrictions, fixed wireless service providers will still need to negotiate agreements with appropriate parties for the placement of their antennas in areas where the property owner or lessee has exclusive use or control," it added.
The FCC said that "modifying the OTARD rule is necessary for the effective exercise of our spectrum management authority under Title III of the Communications Act. Specifically, we find that Section 303 of the [1934 Communications] Act provides authority for the Commission to modify the OTARD rule as it applies to fixed wireless devices."
It rejected arguments that the rule change constitutes a "taking" under the Fifth Amendment, noting that it had considered and rejected such arguments in adopting the OTARD rule.
It also rejected arguments "premised on the generalized concerns about the Commission’s RF safety limits and that incrementally revising the OTARD rule would somehow violate people’s right to bodily autonomy or their property-based right to ‘exclude’ wireless radiation emitted by third parties from their home or would violate the Americans with Disabilities Act or the Fair Housing Act by imposing radiation on individuals in their homes."
Democratic Commissioners Jessica Rosenworcel and Geoffrey Starks concurred in the action but did not issue separate statements. Commissioner Starks’s office declined to comment on the reasons for his concurrence. Commissioner Rosenworcel’s office did not respond by TR Daily’s news deadline to an e-mail seeking the reason for her concurrence.
In his separate statement, FCC Chairman Ajit Pai highlighted the role of wireless Internet service providers (WISPs) in bringing broadband to rural and underserved areas and the role of today’s order in the agency’s 5G FAST Plan.
The order "provides regulatory parity between the facilities of wireless Internet service providers and those of other service providers," he said.
"Our rule change reflects the realities of modern network architecture, including densification of transmission equipment and siting of infrastructure closer to end users, while preserving the rights of property owners or lessees to freely negotiate the terms of antenna placements. Extending OTARD protection to qualifying broadband-only antennas will remove unreasonable barriers to deployment erected by third parties, such as local zoning laws and private restrictive covenants as well as excessive permitting fees. This is common-sense reform that is well within the Commission’s legal authority to enact, and it therefore has my full support," Chairman Pai added.
Commissioner Brendan Carr said, "Today’s item notches yet another win in the FCC’s work to accelerate the buildout of Internet infrastructure. It does so by making it easier for fixed wireless providers to install the antennas needed to expand their networks and thus extend high-speed services to even more Americans.
"Over the last three years, I have worked closely with FCC staff on reforms like these, and the Commission’s efforts have delivered results. The private sector has been building out high-speed infrastructure at an unprecedented pace, and this has helped bring families across the digital divide and extend America’s leadership in 5G. I am hopeful that we can continue to build upon this progress in the months and years ahead," he added.
In a statement, WISPA Vice President-policy Louis Peraertz said, "We are pleased that the FCC unanimously extended the OTARD rule to hub and relay systems. This moves our industry in the right direction for growth and deployment. We are still reviewing the Order to understand the finer details at this time." —Lynn Stanton, [email protected]
MainStory: FederalNews FCC BroadbandDeployment WirelessDeployment
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