Divided D.C. Circuit Remands FCC Retention of 1996 RF Limits

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.

The court found that the FCC's decision not to revisit its 1996 limits on RF exposure was "arbitrary and capricious" under the federal Administrative Procedure Act (APA) because the agency did not provide a "reasoned explanation,"—relying instead on conclusory statements from the FDA—without adequately responding to evidence in the administrative record to determine whether the FCC's guidelines "adequately protect against the harmful effects of exposure to radiofrequency radiation unrelated to cancer."¹ The court remanded the case to the FCC to provide the missing reasoning—a task that the opinion (and the dissent) suggest should be relatively easy given the rationales the FCC offered during the appeal but were missing from the 2019 order.

Although the decision went against the FCC, the court did not conclude that RF emissions from mobile and other wireless devices are unsafe and hazardous—a recurring claim that has been a significant obstacle to deployment of next-generation wireless infrastructure. The court emphasized that it took "no position in the scientific debate regarding the health and environmental effects of RF radiation,"² but was careful to explain that RF radiation is "non-ionizing" and distinct from "ionizing radiation" (also called "radioactivity") that can damage tissue,³ and found the FCC's determination that exposure to RF radiation at levels below current exposure limits does not cause cancer was not "arbitrary or capricious."⁴

Background

The case arose from the FCC's obligation to regulate devices that transmit radio waves and microwaves—forms of electromagnetic energy collectively described as RF that when moving through space are known as "RF radiation." In a 1996 Report and Order, the FCC adopted guidelines for limiting human exposure to RF radiation from cell phones and other antennas, incorporating recommendations from the National Council on Radiation Protection and Measurements (NCRP) and other organizations.⁵

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

The court rejected the petitioners' other challenges under the APA, finding that the FCC's 2019 order terminating the NOI adequately responded to studies alleging that the current limits posed cancer risks by citing an International Commission on Non-Ionizing Radiation Protection response that "provide[d] a detailed explanation of various inconsistencies and limitations in the studies."²¹ The court also rejected the NEPA challenge, concluding that the FCC was not required to issue an environmental review because—after adoption of the 1996 limits—there was no new proposal for "major federal action" to trigger such a review, even if the limits had become outdated.²²

The Dissent

The dissenting judge disagreed, arguing that the FCC was entitled to reasonably rely on the conclusions of the FDA—a distinct and expert health agency "statutorily charged with protecting the public from RF radiation,"²³ noting that the evidence calling the 1996 limits into question was tentative,²⁴ and concluding that the majority effectively substituted its judgment for that of expert agencies to which it should have deferred under administrative law principles.²⁵

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.

The decision suggests that the FCC should be able to do that rather easily, noting that both counsel for the FCC and the dissent offered rationales for the 2019 order. Although the court concluded that neither "post hoc rationales by counsel" nor the dissent's arguments satisfied the APA requirements, it appears that if the FCC adopted similar explanations in a revised order, that order would satisfy the APA and survive appellate review.

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

FOOTNOTES

1  Op. at 30.
2  Op. at 31.
3  Op. at 4.
4  Op. at 27.
5  https://www.fcc.gov/general/radio-frequency-safety-0.
6  Op. at 6.
7  NOI, ¶¶ 6, 218-219; Op. at 6.
8  NOI, ¶¶ 7, 231-235; Op. at 6.
9  NOI, ¶¶ 236-238; Op. at 6.
10 NOI, ¶ 244, 248; Op. at 6.
11 Source: FCC ECFS, ET Docket No. 13-84.
12 34 FCC Rcd. at 11692–97.
13 Op at 7.
14 Op. at 9.
15 American Horse Prot. Ass'n v. Lyng, 812 F.2d 1, 4 (D.C. Cir. 1987).
16 Am. Radio Relay League, Inc., v. FCC, 524 F.3d 227, 233 (D.C. Cir. 2008).
17 Op. at 9 (quotes cleaned up).
18 Op. at 13-14.
19 Op. at 15.
20 Op. at 15.
21 Op. at 26.
22 Op. at 29., citing EMR Network v. FCC, 391 F.3d 269, 272 (D.C. Cir. 2004).
23 Op. at 39 (Henderson, J., dissenting).
24 Op. at 33 (Henderson, J., dissenting).
25 Op. at 32 (Henderson, J. dissenting).
26 Op. at 30.