Notice & Comment

The D.C. Circuit Cites D.C. Circuit Review – Reviewed

It was bound to happen, wasn’t it? On December 8, 2017, my co-blogger Aaron Nielson reported in D.C. Circuit Review – Reviewed on a speech given by Judge Randolph at the Center for the Study of the Administrative State. Last week Judge Randolph cited Aaron’s post for the first-ever D.C. Circuit citation to D.C. Circuit Review – Reviewed

The case was Children’s Health Defense v. FCC, which involved a facial challenge to a regulation. Judge Randolph wrote for the panel, which included Judge Millett and Judge Katsas. The case arose from the FCC’s amendment of a regulation concerning the installation of antennas on private property. In 1996, the FCC promulgated a regulation preempting state and local restrictions on installation of “over-the-air reception devices,” with an exception for “certain restrictions for safety and historic preservation purposes.” It amended the regulation in 2004. Then, in 2021, the FCC amended its rule again, this time to authorize the installation of hub and relay antennas that would provide wireless service to customers located off the property. The agency’s stated aim was to facilitate the delivery of high speed Internet access, particularly in rural and underserved areas. Children’s Health Defense (among others) petitioned for review, arguing that the FCC’s action would lead to increased radiofrequency exposure, which, in turn, would harm people who are sensitive to such exposure in violation of the Americans with Disabilities Act (ADA), the Fair Housing Act (FHA), and the federal Constitution. 

The case presented interesting jurisdictional and merits issues concerning preemption. As to jurisdiction, the D.C. Circuit held that two petitioners had standing because the FCC had aimed to preempt restrictive covenants, not just state and local governmental regulations, including the covenants that protected both petitioners from the installation of antennas in their neighborhoods. Thus, the court reasoned, the FCC’s action directly threatened contractual or property rights and created an injury in fact. On the merits, Judge Randolph disposed of several challenges, including the one based upon the ADA and FHA. As to that issue, he revisited the question of facial challenges to agency regulations:

Petitioners argue that the amendment to the regulation will violate the FHA and the ADA. It is unnecessary to go into any detail about how exactly the amendment would supposedly bring about these violations. It is enough to point out that here, as in Building Owners, 254 F.3d at 100, petitioners are mounting a facial challenge. Whatever the validity of their FHA and ADA analyses, their allegations depend on the presence, within the range of a hub or relay antenna, of an individual who is adversely affected by radiofrequency radiation. The upshot is that there necessarily will be circumstances in which the amendment of the Order will have no adverse consequences because no such individual is in the vicinity. Yet in order to succeed in their facial challenge, petitioners had to show that there are no circumstances in which amendment of the regulation would be valid. See Reno v. Flores, 507 U.S. 292, 300–01 (1993); INS v. Nat’l Ctr. for Immigrants Rts., Inc., 502 U.S. 183, 188 (1991); Cellco P’ship v. FCC, 700 F.3d 534, 549 (D.C. Cir. 2012); Air Transp. Ass’n of Am., Inc. v. U.S. Dep’t of Transp., 613 F.3d 206, 213 (D.C. Cir. 2010); Ronald A. Cass, Nationwide Injunctions’ Governance Problems: Forum Shopping, Politicizing Courts, and Eroding Constitutional Structure, 27 Geo. Mason L. Rev. 29, 75 n.193 (2019); Aaron L. Nielson, D.C. Circuit Review – Reviewed: Thoughts from Judge Randolph, Yale J. on Regul. Notice & Comment (Dec. 8, 2017),

Judge Randolph went on, however, to warn the FCC about potential limits to the preemptive effect of its order:

Petitioners also raise concerns about the preemption of local ordinances or contractual provisions requiring property owners to provide notice to local governments or homeowners’ associations before installing commercial-grade antennas. Although we uphold the Order against facial attack, we acknowledge that the Commission is treading on thin ice in asserting broad authority to preempt any notice requirements affecting antenna installations.

I’ll renew Aaron’s call for more attention to how courts should review facial challenges to regulations. In Reno v. Flores, the Court applied the Salerno test to a facial challenge to a regulation, stating that “[t]o prevail in such a facial challenge, respondents ‘must establish that no set of circumstances exists under which the [regulation] would be valid.’ United States v. Salerno, 481 U.S. 739, 745 (1987).” Does this extension of Salerno make sense? As Professor Ron Levin once noted, it “has been strongly questioned,” and, as Judge Randolph has previously described, “may pose potential problems for judicial review of agency regulations.” (Both Judge Randolph and Professor Levin have addressed one such problem in cases where statutes impose time limits on review.)

Last week the D.C. Circuit also decided Whiteru v. WMATA, a tort suit with horrifying facts. Okiemute C. Whiteru, a 35-year-old attorney, fell from a parapet in the Judiciary Square Metro Station in D.C. A Metro customer found his body four days later. Apparently, had WMATA employees found him sooner (how much sooner would have been necessary is disputed), he would have survived. Whiteru’s family sued WMATA for breaching its tort law duty as a common carrier. The District Court (Jackson, J.), granted summary judgment to WMATA after concluding that Whiteru was contributorily negligent because he was intoxicated when he fell. Judge Wilkins, writing for the D.C. Circuit and joined by Judge Henderson and Judge Tatel, reversed. The court held that D.C. common law has exceptions to the contributory negligence defense. One exception, reflected in Section 314A of the Restatement (Second) of Torts, would allow a reasonable jury to hold WMATA liable as a common carrier for failing to aid Whiteru when its employees knew or had reason to know he was injured. 

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