United States: FCC Still Ignores Wireless Harms, 5G Critics Tell DC Circ.

FCC Still Ignores Wireless Harms, 5G Critics Tell DC Circ.
By Kelcee Griffis,Law360, 21 October 2020

Law360 (October 21, 2020, 4:15 PM EDT) -- The Federal Communications Commission backfilled its reasoning for last year's decision not to toughen its wireless exposure limits, two groups have told the D.C. Circuit, saying the agency based its decision on the "unsubstantiated" opinions of some health and safety organizations.

Children's Health Defense and the Environmental Health Trust, which have filed a lawsuit to force the FCC to revisit the decision, wrote Monday that the FCC employed "post-hoc rationalization and wrongly cites to extra-record documents, some of which did not even exist at the time of the order."

In the order at issue, the FCC revisited its radiofrequency exposure limits and found that the current regulations are among the strictest worldwide, making them still effective in protecting people from harmful wireless transmissions as the telecom industry switches to 5G service.

But according to the lawsuit launched in January, the rules don't control for conditions such as 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 groups' opening brief. They wrote Monday that the court should not cede to the FCC when it relies on opinions from agencies that are not wireless experts — such as the U.S. Food and Drug Administration — and when it hasn't analyzed the potential effects of newer technologies such as 5G.

"There has been a sea change over the past quarter century, including saturation of new and more powerful radiation sources and a pending massive rollout of 5G infrastructure that will rely on even-riskier ... emissions," according to the reply brief. "The order nowhere addresses potential impacts of new technologies, recent studies establishing a variety of noncarcinogenic health risks, extensive research demonstrating increased risk of certain cancers or pleas for relief by many individuals who credibly claim present harm."

The FCC, in its initial brief filed Sept. 22, said it does indeed credit outside experts in declining to change its preexisting wireless safety standards. Also, the FDA's assessment that no further changes are needed lines up with other organizations, such as the World Health Organization, the FCC said.

"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 FCC wrote.

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 Stephen Berg.

https://www.law360.com/articles/1321541/fcc-still-ignores-wireless-harms-5g-critics-tell-dc-circ-