DC Circuit May Reverse FCC’s RF-EMR Exposure Limits Order 19-126 from December 2019

Adapted from a Feb 11, 2021 National Law Review article here.

On Jan. 25, 2021, the U.S. Court of Appeals for the D.C. Circuit heard oral argument on the Federal Communication Commission’s (FCC’s) 2020 decision on pulsed, data-modulated, Radio-frequency Electromagnetic Microwave Radiation (RF-EMR) in which the FCC made a number of procedural changes to its rules an purportedly left the RF-EMR limits adopted in 1996 unchanged. See the Jan. 23, 2020 blog entry “Old Limits and New Procedures for FCC RF Exposure Rules” for detailed discussion of the FCC decision.

Wire America: Actually, FCC Order 19-126 allows the Wireless industry to increase the difference between peak and average RF-EMR exposures by several orders of magnitude.

Listening to the oral argument reveals that the FCC position was not well received by the Court of Appeals. Strikingly, one of the judges reportedly stated during oral argument that he was inclined to rule against the FCC because the agency’s reliance on U.S. health and safety agencies’ judgments was not well substantiated. The FCC does have an opportunity to add to the record of the case to try to bolster its position.

If the FCC decision is reversed, it could result in an extended period of uncertainty for domestic RF-EMR exposure guidelines, which would likely raise substantial problems for both manufacturers of wireless radio equipment and network operators. Generally, demonstration of compliance with the FCC’s RF-EMR exposure has been considered a safe harbor for equipment manufacturers and system operators — but now, there may need to be substantial changes throughout the entire wireless ecosystem.

The FCC sat on its hands for nearly eight years before reaching its decision to not change the 1996 RF-EMR exposure limits, despite significant, peer-reviewed scientific findings of “clear evidence” of brain cancer, heart cancer and DNA damage from RF-EMR exposures at levels that are below that which heats tissue.

If the Court of Appeals reverses the FCC and that decision stands (the FCC could request further review in the courts), a multi-year period with U.S. RF-EMR limits no longer deemed valid or appropriate could prove highly disruptive to the wireless industry ecosystem and be unsettling for consumers.

Stay tuned for developments in this case. We will follow-up when the court issues its decision.