TR Daily Judges Skeptical of Amount of Expert Input in FCC’s RF Proceeding
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Monday, January 25, 2021

Judges Skeptical of Amount of Expert Input in FCC’s RF Proceeding

Two members of a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit today appeared skeptical of whether the FCC had adequately gathered expert evidence before deciding in 2019 to maintain its existing radio frequency (RF) exposure standards.

In particular, the judges expressed frustration concerning the absence in the record of whether an expert committee of the Food and Drug Administration and an interagency working group had weighed in—or even if they existed.

The issues arose during an oral argument today in Environmental Health Trust et al. v. FCC (consolidated cases beginning at 20-1025), which involves two legal challenges to an item adopted by the FCC in 2019.

In the item, the FCC resolved a notice of inquiry adopted in 2013 and also adopted a second report and order, notice of proposed rulemaking, and memorandum opinion and order in ET dockets 03-137, 13-84, and 19-226 (TR Daily, Dec. 4, 2019). The proceeding marked the first review of the agency’s RF standards since they were adopted in 1996.

In resolving the NOI, the FCC said, "After reviewing the extensive record submitted in response to that inquiry, we find no appropriate basis for and thus decline to propose amendments to our existing limits at this time. We take to heart the findings of the Food & Drug Administration (FDA), an expert agency regarding the health impacts of consumer products, that ‘[t]he weight of scientific evidence has not linked cell phones with any health problems.’ Despite requests from some to increase and others to decrease the existing limits, we believe they reflect the best available information concerning safe levels of RF exposure for workers and members of the general public, including inputs from our sister federal agencies charged with regulating safety and health and from well-established international standards."

One petition for review was filed in the D.C. Circuit on behalf of EHT, Consumers for Safe Cell Phones, and two individuals who say that RF emissions have harmed them (TR Daily, Feb. 5, 2020). The other petition for review was filed in the U.S. Court of Appeals for the Ninth Circuit (San Francisco) on behalf of Children’s Health Defense, some physicians, and parents who say their children were harmed by wireless emissions (TR Daily, Feb. 4, 2020). The cases were consolidated in the D.C. Circuit.

The petitioners argue that the FCC ignored a huge amount of evidence that its standards are not adequately protecting the public from the negative health impact of RF emissions, that the agency violated the Administrative Procedures Act by failing to engage "in reasoned decision-making," and that it violated the National Environmental Policy Act by failing to consider the environmental impact of its decision.

But the FCC says it considered the record and reasonably decided that no change in the RF standards was warranted and that it complied with the APA.

During today’s oral argument, Judges Patricia A. Millett and Robert L Wilkins expressed skepticism about whether the Commission had received adequate expert advice from government and non-government entities in response to its NOI.

For example, both judges asked whether an inter-agency working group on RF issues and an expert committee that Congress required the FDA establish to review RF standards had weighed in on the FCC’s rules—or whether the working group and committee even existed.

Judge Wilkins said he was "inclined to rule against" the FCC and asked Deputy FCC General Counsel Ashley Boizellewhy he shouldn’t vote to send the case "back for the relevant working group and the FDA to look at this record."

"You get a lot of leash, but at some point that leash goes too far and becomes unreasonable without a little bit of follow-up," Judge Millett added.

Ms. Boizelle repeatedly stressed that the FCC in its NOI sought comment from all relevant agencies and said it would consider any input. "That’s all that’s required here," she added.

"We left the docket open for seven years," she added. "Not one of these bodies said you need to change your standards."

Ms. Boizelle also said the working group exists, but she said she did not have any information about the FDA committee. Judge Karen LeCraft Henderson asked her to provide information on both by 5 p.m. tomorrow.

The FCC attorney also faced sustained grilling from Judge Millett about why the FDA’s input should be considered adequate considering it only focused on the linkage between cellphone use and cancer. The judge also asked what other expert sources the Commission relied upon in deciding that there was no need to modify its RF exposure rules.

Judge Millett specifically prodded for information on any expert discussion "about cumulative exposures from multiple devices over a prolonged period of time for a physical impact other than cancer."

Ms. Boizelle said the FCC relied on its technical experts as well as on the World Health Organization, the International Council on Non-Ionizing Radiation, and the National Toxicology Program (NTP).

In 2018, the NTP accepted the recommendations of an expert peer-review panel and upgraded the confidence levels of carcinogenic activity in rats from exposure to 2G and 3G radiofrequency radiation (TR Daily, Nov. 1, 2018). However, NTP and others cautioned that the results cannot be extrapolated to predict the impacts of human cellphone use, Ms. Boizelle noted.

Ms. Boizelle also said that evidence only shows health impacts from thermal RF exposure of 4 watts and above and not from non-thermal exposure. She also pointed to a previous D.C. Circuit case where the court said it was reasonable for the FCC to rely on expert agencies regarding RF emissions and she called the standard of review in this case "quite high."

But W. Scott McCollough, an attorney for the petitioners, argued that the FCC should not be given "heightened deference" in the case.

Judge Millett asked him to point to cases where heightened deference has not been given in those involving scientific evidence. He pointed to one case. As to arguments that the Commission failed to adequately explain its item and did not address the record as a whole, the judge noted that the item dealt with an NOI and had not moved to a rulemaking, where such arguments are often made.

Mr. McCollough also said that the FCC should not have relied on "short missives" from the FDA that only addressed cancer and cellphones and not other adverse effects of RF exposure and he said there is substantial evidence of harmful impacts from non-thermal RF exposure. He suggested that the Commission should have also relied on the NTP.

JudgeWilkins asked Mr. McCollough to respond to the FCC’s argument that parties in the FCC’s record had not proposed a specific change to the Commission’s RF standard. The attorney replied that a specific change could have been considered during a subsequent rulemaking. —Paul Kirby, [email protected]

MainStory: FCC FederalNews Court

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