D.C. Circuit Remands Radiofrequency Radiation Order to FCC

A divided opinion issued last Friday by an appellate panel ordered the Federal Communications Commission (FCC) to explain why its current guidelines adequately protect against the harmful consequences of exposure to radiofrequency (RF) radiation unrelated to cancer. The opinion found that the FCC’s final order declining to revise its RF radiation limits failed to abide by Administrative Procedure Act (APA) and National Environmental Policy Act (NEPA) strictures.

The court explained that certain facilities and devices like cell phones rely on radiofrequency electromagnetic waves to send and receive signals. Reportedly, the movement of those electrical charges generates RF radiation, which is non-ionizing. As such, RF radiation does not have enough energy to strip electrons from atoms and in turn, damage biological tissue and DNA, the opinion said.

However, thermal effects, the warming of body tissues, result from RF radiation and can be harmful. According to the opinion, additional non-thermal effects may occur and may have deleterious effects on the human body, but both questions are the subjects of ongoing debate.

The judges explained that the FCC regulates devices that emit RF radiation, and last issued limits for RF exposure in 1996. In March 2013, the oversight body said that it was issuing the notice of inquiry “in response to changes in the ubiquity of wireless devices and in scientific standards and research since 1996.” In December 2019, the FCC issued a final order resolving its 2013 review by declining to modify the limits and guidelines.

In January 2020, Environmental Health Trust, Consumers for Safe Phones and other public safety interest groups and concerned individuals petitioned for review of the final order, both in the D.C. Circuit and in the Ninth Circuit. Chiefly, the petitioners claimed that the FCC violated APA requirements by failing to respond to significant comments and the NEPA by failing to issue an environmental assessment or impact statement regarding the decision to terminate its notice of inquiry.  

The majority opinion held that as a matter of law, the FCC’s “cursory analysis of material record evidence,” was insufficient to satisfy its obligation to explain the termination of the notice of inquiry. Among several concerns, the court highlighted the FCC’s failure to provide a reasoned explanation for dismissing evidence addressing non-cancer-related health impacts of RF radiation on children.

The majority noted that commenters, including the American Academy of Pediatrics, pressed the FCC to adopt limits that consider the use of RF-emitting devices by at-risk children and pregnant women. The FCC’s dismissal of these concerns in reliance on a conclusory statement from the U.S. Food and Drug Adminstration finding no risks to children and teens failed to meet the APA’s “reasoned” explanation requirement, the opinion said.

The D.C. Circuit concluded by noting that it takes no position in the scientific debate over the health and environmental effects of RF radiation. The court abstained while acknowledging that “there may be good reasons why the various studies in the record … do not warrant changes to the Commission’s guidelines,” as the dissenting opinion made clear.