Kelcee Griffis, Law360, Jul 30, 2020
In an opening brief, the Children's Health Defense and the Environmental Health Trust argued the agency glossed over crucial evidence when it found in December that its radiofrequency-exposure limits — established in 1996 — still provide adequate protection.
"The FCC received an enormous number of peer-reviewed scientific and medical studies, analyses, and reports demonstrating a consensus of the scientific community that radiofrequency radiation is harmful and sometimes lethal to individuals and the environment," the brief says. "The factual record in this case is strong. Yet the Order gives no consideration to most of the evidence presented to it."
The case, filed in late January, argues that the FCC's rules don't go far enough to protect consumers, especially when those exposed to long-term or multiple sources of radiation. The rules also "do not provide for sensitive or vulnerable populations," according to the brief.
Last year, the FCC revisited its wireless safety standards and found that the current regulations are among the strictest worldwide, making them still effective in protecting people from harmful wireless transmissions.
But according to the lawsuit, the rules don't control for conditions like radiation sickness, which the suit says causes symptoms such as memory loss and fatigue when individuals are exposed to a high volume of invisible radio waves. Prolonged exposure can also impair development in children and is associated with negative environmental impacts, the suit claims.
The sources of such exposure include wireless towers, the proliferation of 5G small-cell nodes in neighborhoods, Wi-Fi signals and cellphones, according to the opening brief.
"The agency simply ignored the ills and challenges faced by individuals who are especially susceptible to Radiation Sickness," the petitioners wrote. "In so doing, the FCC begged the question of whether the agency has a responsibility ... to develop a remedy that would address the ills being visited upon these people."
According to the nonprofits, the D.C. Circuit must force the FCC to revisit its rulemaking that failed to take into account the testimony from individuals and scientists who expressed concerns that ran counter to the FCC's already established wireless safety guidelines.
"There is no meaningful explanation why the scientific and medical evidence regarding harms and risks from current limits was not valid," according to the brief. "The public still has no idea why the FCC decided thousands of studies and hundreds of individual assertions of harm were unworthy of serious discussion."
For its part, an FCC spokesman told Law360 that the agency stands by its decision-making process.
"We are confident that these stringent limits protect the health of the American people and that our decision will withstand judicial review," the statement said.
The petitioners are represented by Edward B. Myers W. of the Law Office of Edward B. Myers; and W. Scott McCollough of the McCollough Law Firm P.C.
The FCC is represented in-house by William J. Scher, Ashley Stocks Boizelle, Jacob M. Lewis and Richard Kiser Welch.
The case is Environmental Health Trust, et al. v. FCC, et al., case number 20-1025, in the U.S. Court of Appeals for the District of Columbia Circuit.
--Editing by Peter Rozovsky.