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Remand Possible

Judges Press FCC on Science Behind Latest RF Safety Rules

Judges from the U.S. Court of Appeals for the D.C. Circuit hammered the FCC Monday during oral argument on a case that RF safety advocates brought last summer (see 2007300056), seeking to force the agency to update 25-year-old exposure rules. In December 2019, commissioners approved 5-0 an order largely upholding the old rules, making few tweaks (see 1912040036). Judges questioned how the FCC could rely in large part on advice from the Food and Drug Administration.

The order had “lots” of discussion “about how there’s so many new devices and people are using multiple devices,” Judge Patricia Millett told FCC Deputy General Counsel Ashley Boizelle. “The FDA came back and talked about cellphones and cancer.”

We didn’t rely exclusively on the FDA’s representations about the state of the science,” Boizelle responded. “You’re right, that their statements spoke specifically about cellphones,” she said. “How is it reasonable to rely on that at all?” Millett pressed: “I’m talking about watches. I’m talking about iPads.” The FCC didn’t rely solely on FDA advice but also looked at evidence from the World Health Organization, International Commission on Non-Ionizing Radiation Protection and other research, Boizelle said. “It was a broader inquiry.”

Judge Robert Wilkins said he's “inclined” to rule against the FCC. The law requires the agency to establish a working group to review testing standards, he said. “You don’t reference that committee anywhere” in the record, he said. “You give us no evidence that this committee has looked at any of this,” he said. “Why shouldn’t I send [the order] back for the relevant working groups and the FDA to look at this record?” he asked Boizelle.

Boizelle said the working group exists, and her agency asked in a notice of inquiry for “the views of all expert” agencies. “The views that we received, we took into account,” she said.

Scott McCollough, who argued the case for the Environmental Health Trust (EHT), said a recent incident shows the problem with the FCC’s approach. A plaintiff called the FCC to raise a specific RF concern, he said. “The commission representative said, ‘We don’t deal with humans, only frequencies,’ and hung up,” McCollough said: “That conversation encapsulates the FCC’s approach here. By closing the inquiry, the commission failed its duty under the Communications Act to consider all potential health and safety” risks.

Even under the highest level of deference the court could offer, the FCC “has to engage in reasoned decision-making,” McCollough said. It “has to address all the material issues” and "look at the entire record,” he said.

Wilkins asked if anywhere has more restrictive standards than the U.S. Some standards are tougher, especially for devices at the band's lower end, McCollough said.

Petitioners challenge the Order based on their belief that exposure to radiofrequency radiation has harmful, ‘non-thermal’ effects at levels far below the limits adopted by the Commission,” the FCC said in a filing with the court. “But the agency reasonably relied on the expert advice of other federal agencies and standard-setting bodies and the record as a whole to conclude that no evidence of such effects exists and that no changes in the limits were warranted,” the agency said: “That conclusion was neither arbitrary nor capricious.”

EHT counsel Edward Myers told reporters that he's “optimistic, but not certain” the court will remand the order and require another NOI. That way, the FCC can do “a better job, a legally adequate job, of assessing the evidence,” he said. The commission declined comment.

Judges did their homework,” said EHT President Devra Davis. “Judges really homed in on this question of how the FCC relied on such thin evidence from other agencies.”