NEW YORK-A panel of three federal judges heard arguments April 5 in an appeal of Federal Communications Commission siting and safety requirements for the placement of microwave cell sites for wireless telecommunications.
The judges questioned attorneys for both sides critically and closely, allowing the clock to run well past the time scheduled for the hearing. No date was set for a decision in the case, which Howard J. Symons, a Washington, D.C., attorney representing the Cellular Telecommunication Industry Association and AT&T Wireless Services Inc., called “important to the growth of the wireless industry.”
The Communications Workers of America, a trade union, and two citizens’ groups, the Cellular Phone Task Force and the Ad-Hoc Association of Parties Concerned about FCC Health and Safety Rules, challenged as “arbitrary and capricious” certain FCC rules, known as categorical exclusions. These presume that radio-frequency emissions from “free-standing antennas less than 10 meters from the ground whose power (output) is under a certain threshold” are so low that no individual environmental impact statement is required before they can be put in place, said James R. Hobson.
“The FCC (also) should have considered a lateral safety distance (because) it is clear that (RF) radiation is omni-directional,” said Hobson, an attorney with the Washington, D.C., law firm of Donelan Cleary Wood & Master, P.C., which represents the CWA and the Ad-Hoc Association.
“Here in New York City, it is highly possible for a rooftop antenna to be 25 feet away from a bedroom apartment, and we simply are asking that the categorical exclusion bear some relationship to the risk.”
The appellants also contended the FCC had adequate time but chose not to seek consideration by federal environmental and health agencies of additional scientific data regarding human bio-effects of microwave radiation.
“What if the FCC decided the materials submitted for reconsideration didn’t warrant further outside review? Isn’t that an FCC prerogative? I can envision that, with a series of submissions like this, there could be delays of years,” said John M. Walker, one of the three judges hearing the case before the U.S. Court of Appeals for the Second Circuit.
Hobson countered, saying “if the FCC had a reconsideration between mid-1996 and mid-1997, we wouldn’t be here today, and even now there is before the FCC a petition for further reconsideration.”
Attorneys for the FCC and CTIA argued, in part, that the FCC considered “but found no merit” in the contentions of these groups before the agency adopted antenna-siting safety rules.
“If they say they can’t make independent judgments (about health and safety questions), how do they know the new evidence didn’t matter?” asked Judge Jon O. Newman.
Joel Marcus, an attorney for the FCC Office of General Counsel, said that information submitted to the agency for reconsideration by those appealing to this court appeal did not differ materially from information the FCC considered in the first instance.
He also said that, as is customary, the FCC relied during its initial evaluation on feedback from other federal agencies responsible for determining health and safety effects: the Environmental Protection Agency, the Food and Drug Administration, the National Institute for Occupational Safety and Health and the Occupational Safety and Health Administration. Marcus said the FCC also sought guidance from two standards-setting organizations for evaluation of human bio-effects: the Institute for Electrical and Electronics Engineers and the National Council on Radiation Protection.
John E. Schulz, a Denver attorney representing the Cellular Phone Task Force, also argued that a substantial body of new evidence about potentially harmful effects of RF radiation has been published in recent months.
“By failing to acknowledge its responsibilities to consult other agencies, the FCC is depriving the electrically sensitive (who number between 5 million and 40 million) of their rights under the federal Rehabilitation Act,” Schulz said.
Marcus, the FCC attorney, countered “in many instances, the petitioners are relying on evidence not before the agency at the time it made its decision … in August 1997.”
Judge Walker reminded those who brought the case that the appellate tribunal is not a court of original jurisdiction and therefore must review what has gone before rather than considering additional, new evidence.
“In the case before us, we could accept all you say without ruling the FCC was arbitrary and capricious,” Judge Walker told Schulz.
“Where is the legal error that gives us the authority to undo it?”
However, the judges also closely questioned Marcus, the FCC attorney and Symons, attorney for the CTIA and ATTW, about the relative ease private citizens would have in challenging cell sites they fear are harmful to them.
“The best thing would be [an RF emissions] monitor, but it’s not a piece of equipment that members of the general public would have,” Marcus said.
He added that individuals can make a claim to the FCC that they believe an antenna is too close and thereby seek the agency’s review.
“No one is excepted from excess exposure (limits), and the FCC has taken action in some (individual) cases,” Marcus said.
The judges also asked FCC and wireless industry attorneys whether federal law or regulations mandate wireless carriers to track and make public their compliance with existing safety requirements. Symon said such specifications are included as a condition of federal radio-frequency licenses. However, he also said, “Power density does not have to be reported, but it can be derived.”
Furthermore, the judges asked Symon what his clients would want if the Circuit Court panel found further FCC review of the petitioners’ complaints to be warranted.
“If we thought there was some legal infirmity in the (FCC) failure to go back for consideration, what remedy would you suggest?” Judge Walker asked Symon.
Symon said he’d hope for a stay of the appellate court order pending further FCC review.
“Let’s say there was further reconsideration (ordered), you’d want your clients to go ahead and build, and you’re willing to take the risk that capital would be wasted?” Judge Newman asked Symon.
Symon said he’d hope for “transition rules” that essentially would allow cell site construction to proceed and be grandfathered in under existing rules, even if those are later modified.
“So that’s why you’re willing to take the risk,” Judge Newman said.
