Divided DC Circuit Remands 2019 RF Order to FCC

A divided U.S. Court of Appeals for the D.C. Circuit remanded the FCC's 2019 RF safety rules (see 2108130035) to the FCC for further work. The rules largely upheld old rules, while making a few tweaks (see 1912040036). Judges appeared skeptical of the FCC’s defense in January argument in Environmental Health Trust v. FCC (see 2101250051). The wireless industry and RF safety advocates both declared a win. The FCC is “reviewing the decision carefully,” a spokesperson said.

“The Commission failed to provide a reasoned explanation for its determination that its guidelines adequately protect against the harmful effects of exposure to radiofrequency radiation unrelated to cancer,” said the Friday opinion by Judge Robert Wilkins, joined by Judge Patricia Millett, who both expressed skepticism in January. The FCC cites statements by the Food and Drug Administration as justification, the court said: “We find them to be of the conclusory variety that we have previously rejected as insufficient to sustain an agency’s refusal to initiate a rulemaking.”

The FCC fails “to acknowledge, let alone respond to, comments concerning the impact of RF radiation on the environment,” the opinion said: This “utter lack of a response does not meet the Commission’s obligation to provide a reasoned explanation for terminating” the notice of inquiry. The record includes “substantive evidence of potential environmental harms,” including a letter from the Interior Department raising concerns on the “impact of RF radiation from communication towers on migratory birds,” the court said.

The court ordered the FCC to provide a “reasoned explanation for its decision to retain its testing procedures for determining whether” cellphones and other devices “comply with its guidelines” and to “address the impacts of RF radiation on children, the health implications of long-term exposure to RF radiation, the ubiquity of wireless devices, and other technological developments that have occurred since the Commission last updated its guidelines.” The FCC must also “address the impacts of RF radiation on the environment.”

In a partial win for industry, the court also said the commission “offered an adequate explanation for its determination that exposure to RF radiation at levels below the Commission’s current limits does not cause cancer.” The court took no position on the “scientific debate regarding the health and environmental effects of RF radiation.”

Judge Karen Henderson partially dissented, saying the FCC’s reliance on the FDA statements was reasonable. The majority relies on “an inaccurate premise -- the Commission was not confronted with evidence that its regulations are inadequate nor have the factual premises underlying its RF exposure limits eroded,” she said: “Sifting through the record’s technical complexity is outside our bailiwick. If the record here establishes one point, however, it is that there is no scientific consensus regarding the ‘non-thermal’ effects, if any, of RF radiation on humans.”

The court “upheld the rule of law,” emailed EHT President Devra Davis. “We need a Congressional hearing, an investigation of how our country ended up in this situation and a federal action plan to ensure it never happens again,” she said. If cellphones “were a drug they would have been banned years ago,” she said: “5G would never have been allowed to market.” An increasing number of studies “ignored by the FCC … clearly indicates that exposure to wireless radiation can lead to numerous health effects, especially for children,” Davis said.

“Today’s appeals court decision expressly upholds the FCC’s determination that mobile phones and networks do not cause cancer,” CTIA said in a statement. “The consensus of the international scientific community is that radiofrequency energy from wireless devices and networks, including 5G, has not been shown to cause health problems,” the group said: That evidence includes “thousands of peer-reviewed studies conducted over decades and includes input from expert organizations such as the FDA, World Health Organization and American Cancer Society.” Other industry groups declined comment Friday.

RF safety is a “no win” issue for the FCC, former FCC engineer and consultant Michael Marcus told us. The agency “is understaffed in spectrum policy in general and this area specifically,” he said.