Excerpts

On August 13, 2021, a divided D.C. Circuit panel granted petitions for review of the Federal Communications Commission’s (FCC) 2019 order that terminated a Notice of Inquiry concerning the FCC’s guidelines for radiofrequency (RF) exposure.

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In March 2013, the FCC issued a Notice of Inquiry (NOI) concerning review of the 1996 guidance in response to new research and increasingly ubiquitous wireless devices.⁶ In particular, the NOI sought comments on:

• (1) Whether revisions to exposure limits for RF were appropriate, including for children;⁷
• (2) How to better inform consumers making decisions about exposure;⁸
• (3) Whether to adopt new precautions in addition to the exposure limits;⁹ and
• (4) Revising how the FCC evaluates device and facility compliance with exposure limits.¹⁰

Over 1,000 comments had been filed in response¹¹ when in December 2019 the FCC decided to close the NOI without making any of the potential changes to its guidance.¹² Separate petitions for review of the FCC’s decision were filed by Environmental Health Trust (EHT) and Children’s Health Defense (CHD) alleging violation of the APA and National Environmental Policy Act (NEPA). Those petitions were eventually consolidated in the D.C. Circuit.¹³

The D.C. Circuit’s Ruling

The court held that the FCC order was entitled to a “high degree of deference, both because it is akin to a refusal to initiate a rulemaking” and “because it concerns highly technical determinations of the kind courts are ill-equipped to second-guess.”¹⁴ But, citing prior decisions in American Horse¹⁵ and American Radio,¹⁶ the majority explained that the FCC decision must still meet minimal criteria—namely, it must be “reasoned,” provide “assurance that it considered the relevant factors,” and “must provide analysis that follows a discernable path to which the court may defer.”¹⁷

The court held that the FCC’s 2019 order resolving the NOI failed that test, particularly by neglecting to provide a reasoned response to certain post-1996 studies, reports, and comments alleging negative non-cancer health effects at exposure levels below the 1996 limits. The court explained that the FCC’s response was essentially to rely on three FDA statements attesting to a review of the scientific evidence and determination there was no established link with health problems at such levels. Those FDA statements, the court ruled, were “practically identical” to FCC statements that the court already held were insufficient to decline rulemaking in American Horse and American Radio.¹⁸

In the court’s view, such statements were “conclusory” and “offer ‘no articulation of the factual . . . bases’ for the FDA’s conclusion,” so that citing such FDA statements was no substitute for the “reasoned explanation” the APA required of the FCC.¹⁹ The FCC could not rely on FDA expertise if the latter’s reasoning was not evident—particularly since the FCC itself had a statutory duty to regulate RF devices with regard to public health. “Were the APA to require less,” the court warned, “our very deferential review would become nothing more than a rubber stamp.”²⁰

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What’s Next

In remanding, the court ordered the FCC to:

• (1) 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;
• (2) Address the impacts of RF radiation on children, health implications of long-term exposure to RF radiation, the ubiquity of wireless devices, and other technological developments that have occurred since 1996; and
• (3) Address the impacts of RF radiation on the environment.

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At this point, however, it is unclear whether further comments will be solicited in the 2013 NOI docket (13-84). If the FCC chooses to open a new rulemaking, it would be required by the APA to invite comments from interested parties and the public, and the court made clear that a new rulemaking would constitute a proposal for a major federal action that would likely trigger environmental review requirements under NEPA.²⁶