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Court Judgment on FCC’s Record Review of 1996 Wireless Radiation Standards

Oct 27, 2021

The U.S. Court of Appeals for the D.C. Circuit ruled the Federal Communications Commission (FCC) failed to provide a reasoned explanation for its determination that its wireless radiation guidelines -set in 1996- adequately protect against all harmful effects of exposure.  The legal case brought by Environmental Health Trust (EHT) challenged the agency’s 2019 decision not to change its 1996 health and safety guidelines regarding wireless-based technologies (including 5G).

The Court ordered the FCC to review the record which has thousands of pages of scientific research and testimony and make a reasoned determination as to whether the evidence regarding health risks relating to non-cancer conditions, children, and environmental issues warrants reconsidering the existing emission exposure limits and rules regarding for wireless radiation.  

The Issue: FCC’s 25-Year-Old Safety Rules for Wireless 

The case EHT et al. v. FCC is regarding federal rules about U.S. safety limits for human exposure to the wireless radio frequency (RF) radiation emitted by cell phones, cell towers, Wi-Fi devices and wireless networks, including 5G. These limits were set in 1996 to protect adult men from short-term exposures. The FCC reaffirmed these rules in 2019, thus they remain unchanged despite the rapid changes in technology, children’s use of devices and the multitude of RF radiation-emitting devices in everyday 21st century life. 

The FCC’s 2019 Decision

In December 2019, the FCC abruptly issued a decision, refusing to update these 1996 safety limits, despite thousands of pages of research evidence submitted showing harm from legally allowed RF levels—submissions made to the official record because of a public announcement by FCC requesting input. 

The Legal Challenge

The lawsuit against the FCC challenged the FCC decision not to update the 1996 limits. The lawsuit claimed the FCC did not show evidence that it had taken a “hard look” and carried out a serious examination of the evidence submitted to its request for input regarding FCC’s 1996 limits. 

Petitioners filed 11,000 pages of evidence – 447 exhibits in 27 Volumes-  in support of their  claims documenting research indicating brain damage, memory problems, reproduction damage, synergistic effects, brain cancer, DNA and genetic damage, harm to trees, plants and birds and bees. 

The Court Decision 

After reviewing more than 14,000 pages of petitioners’ evidence, the United States Court of Appeals for the District of Columbia Circuit ruled that the FCC’s 2019 decision not to update 1996 safety limits for wireless radiation was “arbitrary and capricious.”  

 

The Court found that the FCC did not provide evidence of properly examining evidence such as:

  • impacts of long-term wireless exposure
  • impacts to children 
  • the testimony of persons injured by wireless radiation 
  • impacts to the developing brain
  • impacts to the reproductive system
  • impacts to wildlife and the environment.

Inform your elected officials at local, state and federal levels about this Court decision. We need all decision makers onboard for the next step, which is to ensure the accountability of federal health agencies that will now be tapped to provide input to the FCC. TAKE ACTION HERE

The Court Order to the FCC

The FCC must now re-examine the submissions on their record. The Court specifically ordered the FCC to provide a reasoned explanation for these issues:

  • the impacts of wireless radiation on children
  • the health implications of long-term exposure to RF radiation
  • the ubiquity of wireless devices and the technological developments since the FCC last updated its guidelines. 
  • the cell phone radiation emission test methods that use heat measurements and allow a space between the phone and body. 
  • the impacts of wireless radiation on the environment. 

 

The Court also asked the FCC for a better explanation as to why the FCC did not want to change its cell phone radiation compliance methods (i.e., testing phones with heat-based measurements at a distance from the body rather than at body contact). In 1996, when FCC cell phone radiation test methods were set, people carried cell phones in holsters, therefore there was a separation distance between the phone and body. Today, people carry cell phones in tight pockets and bras, and rest laptops on their laps. The Court highlighted how the FCC refuses to change its outdated test procedures that allow cell phones and Wi-Fi devices to be tested with a separation distance, despite the fact that people use phones and Wi-Fi devices in direct contact to their body, and despite the fact that FCC’s  limits can be exceeded by emitting devices that are in contact with the body.  Most importantly, the FCC’s cell phone testing regime uses a heat based threshold which is entirely irrelevant because biological effects have been found at non-heating levels. 

The Petitioners 

Environmental Health Trust (EHT), Consumers for Safe Cell Phones, Elizabeth Barris and Theodora Scarato MSW’s were represented by Edward B. Myers. A case by Children’s Health Defense, Michelle Hertz, Petra Brokken, Dr. David Carpenter, Dr. Toril Jelter, Dr. Paul Dart, Dr. Ann Lee, Virginia Farver, Jennifer Baran and Paul Stanley M.Ed represented by Scott McCullough and Robert F. Kennedy Jr. was consolidated with EHT’s case. Briefs and evidence were jointly filed. 

Inform your elected officials at local, state and federal levels about this Court decision. We need all decision makers onboard for the next step, which is to ensure the accountability of federal health agencies that will now be tapped to provide input to the FCC. TAKE ACTION HERE

The Bottom Line

Most of the public assumes that current FCC safety limits for cell phones, cell towers, Wi-Fi, 5G and wireless networks are based upon a robust review of all relevant research. This safety assumption is now clearly documented to be an incorrect assumption. 

The August 2021 court ruling found the FCC ignored science and failed to explain why it wants to keep outdated 1996 limits. 

Furthermore, the ruling reveals a lack of accountability in our federal health agencies regarding the issue. The EPA, CDC, NIOSH and NCI did not submit any report to the Court, revealing that either none of these agencies reviewed the science or they chose to not disclose their reviews. 

The Court ruling also states that the FCC should not have relied on the FDA’s submissions, which were “cursory” and unsubstantiated. The fact is that U.S. health agencies have not performed an evaluation of all the available science (including brain and reproductive system impacts) to ensure safety for the public. 

Equally important, flora and fauna are entirely unprotected as FCC’s 1996 limits were not designed to protect wildlife, trees or plants. The Court found that the FCC had “completely failed” to address the “substantive evidence of potential environmental harms” on the record. 

The FCC could not defend its 2019 decision to affirm its wireless radiation regulations developed in 1996. The FCC is using an antiquated science base for our 21st century technology. 

 

What’s Next 

The FCC must now respond to the Court with a more reasoned explanation, especially in regards to impacts to children, long-term exposure and the environment. EHT continues to monitor the federal register for the FCC’s response and is now working to ensure the accountability of other U.S. health and environment agencies, such as the FDA and EPA, that are expected to be called on to provide evaluation of the record. 

 

What Can the Public Do? 

We can capitalize on this landmark court ruling to support protective policy and federal accountability. 

  • Inform your elected officials at local, state and federal levels about this Court decision. We need all decision makers onboard for the next step, which is to ensure the accountability of federal health agencies that will now be tapped to provide input to the FCC. TAKE ACTION HERE
  • Share the Court ruling with your family and community through emails and local conversation (such as published Op-eds in local newspapers). 

Court Documents 

Important Video Resources

 

Amicus Briefs 

Educate yourself and your family about how to reduce your daily exposure. EHT has step by step resources here

A Small Sampling of the Numerous Scientific Research Studies Published After December 4, 2019- The Day the FCC Closed Their Inquiry on Human Exposure to Radiofrequency Radiation (RFR). 

The Environmental Working Group published study in Environmental Health analyzing the findings of tumor and heart damage from the National Toxicology Program study and concluded that FCC limits should be strengthened by 200 to 400 times to protect children according to current risk assessment guidelines (Uche 2021). A 2021 study on RFR and the brain published in the International Journal of Radiation Biology found the threshold for an effect in EEG is more than a 1,000 times lower than level deemed safe by the U.S. FCC (Hinrikus et al. 2021).  

European Parliament requested a research report  “Health Impact of 5G” released in July 2021 concluding that commonly used RFR frequencies (450 to 6000 MHz) are probably carcinogenic for humans and clearly affect male fertility with possible adverse effects on the development of embryos, fetuses and newborns. 

A landmark three part 2021 research review on effects to wildlife published in Reviews on Environmental Health by U.S experts including former U.S. Fish and Wildlife senior biologist Albert Manville states current science should trigger urgent regulatory action citing more than 1,200 scientific references which found adverse biological effects to wildlife from even very low intensities of non ionizing radiation with findings of  impacts to orientation and migration, reproduction, mating, nest, den building and survivorship (Levitt et al., 2021a, Levitt et al., 2021b,  Levitt et al., 2021c). 

  • February 2020- Scientists of the National Institute of Environmental Health Sciences National Toxicology Program published a study finding “significant increases in DNA damage” in groups of male mice, female mice  and male rats after just 14 to 19 weeks of exposure to RFR (Smith-Roe et al., 2020).
  • March 2020– Yale researchers published a study supported by the American Cancer Society linking thyroid cancer to cell phone use in people with a type of common genetic variation (Luo et al., 2020). 
  • May 2020- A meta analysis of 300 peer-reviewed scientific publications (1990-2015) describing 1127 experimental observations in cell-based in vitro models on RFR published in Environmental Research found less differentiated cells such as epithelium and spermatozoa are more sensitive to RF (Halgamuge et al., 2020).
  • May 2020– A review on real world exposure to 5G published in Toxicology Letters found that 5 G will have systematic effects as well as adverse effects to the skin and eyes (Kostoff et al., 2020). 
  • November 2020- A systematic review and meta-analysis of case-control studies found evidence that linked cellular phone use to increased tumor risk (Choi et al., 2020). 
  • February 2021– A 4G study found kidney inflammation and damage to the testes in mice (Hasan  et al., 2021). 
  • March 2021– The Switzerland Institute of the Environment expert published review found increased oxidative stress in the majority of animal studies and cell studies with exposures within regulatory limits (Schuermann et al., 2021).
  • July/August 2021– Two systematic reviews find harm to sperm (Sungjoon et al, 2021, Yu et al., 2021). 
  • August 2021– A review on impacts to the thyroid found RFR might be associated alterations in thyroid hormone levels, with a possible disruption in the hypothalamic-pituitary-thyroid axis (Alkayyali et al.,  2021)
  • August 2021- 2400 MHz effected the structural integrity of the hippocampus in mice (Hasan  et al., 2021). 
  • September 2021– A systematic review on the effects of RFR to male reproductive hormones found that wireless can decrease testosterone reduction (Maluin  et al, 2021). 
  • September 2021- A  review on the genetic effects of non-ionizing electromagnetic fields found DNA strand breaks, micronucleus formation, and chromosomal structural changes (Lai 2021). 
  • September 2021– A systematic review published in the Annals of the New York Academy of Sciences found that neuronal ion channels are particularly affected (Bertagna et al  2021).
  • October 2021– A review published in the International Journal of Oncology described how EMFs lead to dysfunction of ion channels which lead to reactive oxygen species/free radical overproduction providing “ a complete picture” of “how human‑made EMF exposure may indeed lead to DNA damage and related pathologies, including cancer,” (Panagopoulos et al. 2021). 

 

Inform your elected officials at local, state and federal levels about this Court decision. We need all decision makers onboard for the next step, which is to ensure the accountability of federal health agencies that will now be tapped to provide input to the FCC. TAKE ACTION HERE