United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued December 7, 2021 Decided February 11, 2022 No. 21-1075 CHILDREN’S HEALTH DEFENSE, ET AL., PETITIONERS v. FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES OF AMERICA, RESPONDENTS On Petition for Review of an Order of the Federal Communications Commission W. Scott McCollough argued the cause for petitioners. With him on the briefs was Robert F. Kennedy Jr. Stephen Diaz Gavin was on the brief for amici curiae Safe Technology Minnesota, et al. in support of petitioners. William J. Scher, Counsel, Federal Communications Commission, argued the cause for respondents. With him on the brief were Todd Kim, Assistant Attorney General, U.S. Department of Justice, Justin D. Heminger and Allen M. Brabender, Attorneys, and Jacob M. Lewis, Associate General Counsel, Federal Communications Commission. 2 Before: MILLETT and KATSAS, Circuit Judges, and RANDOLPH, Senior Circuit Judge. Opinion for the Court filed by Senior Circuit Judge RANDOLPH. RANDOLPH, Senior Circuit Judge: This is a petition for judicial review of an amendment to a regulation of the Federal Communications Commission. The regulation, as originally promulgated, authorized the installation on private property, with the owner’s consent, of “over-the-air reception devices,” regardless of State and local restrictions, “including zoning, land-use, or building regulation[s], or any private covenant, homeowners’ association rule or similar restriction on property.” Telecommunications Act of 1996; Preemption of Restrictions on Over-the-Air Reception Devices, 61 Fed. Reg. 46,557, 46,562 (Sept. 4, 1996) (codified at 47 C.F.R. § 1.4000(a)(1)). Back then, property owners used such antennas to receive direct satellite services, video programming, and television broadcast signals. Id. The regulation preserved local authority to impose “certain restrictions for safety and historic preservation purposes.” Promotion of Competitive Networks in Local Telecommunications Markets, 15 FCC Rcd. 22,983, 23,027–28 (2000). The regulation also covered antennas capable of both receiving radio waves and transmitting signals. Id. at 23,027. The FCC has amended its regulation several times. See Bldg. Owners & Managers Ass’n Int’l v. FCC, 254 F.3d 89, 91–93 (D.C. Cir. 2001). In 2004, the Commission determined that these antennas could serve not only a single property owner but also multiple customers in one location, provided the antennas were not “designed primarily for use as hubs for distribution of service.” Promotion of Competitive Networks, 19 FCC Rcd. 5637, 5644 n.42 (2004). The 2004 order continued to stress that the regulation governed only “customer-end 3 equipment” serving “the customer on such premises.” Id. at 5644. It did not cover carriers’ locating “hub-sites on the premises of a customer in order to avoid compliance with a legitimate zoning regulation.” Id. In 2019, the Commission solicited comments on expanding coverage to include antennas that act as “hub sites” or relay service to other locations—thus, eliminating the 2004 prohibition on antennas “designed primarily for use as hubs for distribution of service.” See Updating the Commission’s Rule for Over-the-Air Reception Devices, 34 FCC Rcd. 2695, 2696, 2699 (2019). In its finalized order, the Commission expanded its regulatory preemption when: “(1) the antenna serves a customer …
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