Court Orders FCC to Explain Cell Phone Radio-frequency Radiation Guidelines

AGL Media Group

BY DON BISHOP August 13, 2021 ONLINE LINK

The U.S. Court of Appeals for the District of Columbia Circuit has ordered the FCC to provide a reasoned explanation for its determination that its guidelines adequately protect against harmful effects of exposure to radio-frequency radiation (RFR) unrelated to cancer. In issuing its order today, the court said that it found the FCC erred when in 2019 it issued an order that reaffirmed its 1996 RFR limits following an inquiry it initiated in 2013 to determine whether the limits adequately protected human health.

“We find the Commission’s order arbitrary and capricious in its failure to respond to record evidence that exposure to RF radiation at levels below the Commission’s current limits may cause negative health effects unrelated to cancer,” the court ruling reads.

Environmental Health Trust, a think tank that promotes a healthier environment through research, education and policy, sued the FCC about its 2019 order. It pointed to multiple studies and reports published after 1996 and that are in the administrative record. The studies and reports purport to show that RF radiation at levels below the Commission’s current limits causes negative health effects unrelated to cancer, such as reproductive problems and neurological problems that span from effects on memory to motor abilities.

“An agency’s decision not to initiate a rulemaking must have some reasoned basis, and an agency cannot simply ignore evidence suggesting that a major factual predicate of its position may no longer be accurate,” the ruling reads.

The court found that although the FCC relied on a conclusory statement from the Food and Drug Administration for some of the justification for not initiating a rulemaking to review the RFR limits, such a conclusory and unexplained statement is not the reasoned explanation required by the Administrative Procedure Act that details steps federal regulatory agencies must take.

“While imitation may be the highest form of flattery, it does not meet even the low threshold of reasoned analysis required by the APA under the deferential standard of review that governs here,” the court wrote.” One agency’s unexplained adoption of an unreasoned analysis just compounds rather than vitiates the analytical void. Said another way, two wrongs do not make a right.”

The court further noted that the FCC failed to respond to approximately 200 comments on the record by people who experienced illness or injury from electromagnetic radiation sickness.

We are delighted that the court upheld the rule of law and found that the FCC must provide a reasoned record of review for the thousands of pages of scientific evidence submitted by Environmental Health Trust and many other expert authorities in this precedent-setting case,” said Devra Davis, Ph.D., president of Environmental Health Trust. “No agency is above the law. The American people are well-served.”

Jerome Paulson, MD, former American Academy of Pediatrics Environmental Health Council Chair and now Professor Emeritus of Pediatrics and Environmental and Occupational Health at George Washington University School of Medicine and Health Sciences and Milken Institute School of Public Health, said that he was pleased that the court ruled “that the FCC ignored decades of studies about the potential health harms of cell phone radiation and must adequately review this material before making a decision about new regulations of cell phones. It is very important that the court ruled that the FCC must address the impacts of radiofrequency radiation on the health of children amassed since 1996.” The American Academy of Pediatrics’ submission to the FCC called for a review of safety limits to protect children and pregnant women.

The appeals court ruling states:

“We grant the petitions in part and remand to the Commission. 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.

“For the reasons given above, we grant the petitions in part and remand to the Commission to provide a reasoned explanation for its determination that its guidelines adequately protect against harmful effects of exposure to radiofrequency radiation unrelated to cancer. It must, in particular, (i) provide a reasoned explanation for its decision to retain its testing procedures for determining whether cell phones and other portable electronic devices comply with its guidelines, (ii) 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, and (iii) address the impacts of RF radiation on the environment. To be clear, we take no position in the scientific debate regarding the health and environmental effects of RF radiation — we merely conclude that the Commission’s cursory analysis of material record evidence was insufficient as a matter of law.”

Don Bishop is executive editor and associate publisher of AGL Magazine.

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