NEW YORK-A federal appellate court handed the Federal Communications Commission a substantial victory Feb. 18 in a case that challenged the agency’s health and safety standards and siting guidelines for microwave transceivers.
In its unanimous decision, the three-judge panel of the U.S. Court of Appeals for the Second Circuit affirmed two final FCC orders: “1996 Guidelines for Evaluating the Environmental Effects of Radio-frequency Radiation” and “1997 Procedures for Reviewing Requests for Relief from State and Local Regulations.”
The Cellular Phone Task Force, a citizens group based at the home of Arthur Firstenberg in Brooklyn, N.Y., was the lead petitioner in the legal challenge. One of his attorneys referred calls to Firstenberg, who could not be reached for comment.
Other petitioners included another citizens group, the Ad-Hoc Association of Parties Concerned about FCC Health and Safety Rules, and two trade unions, the Communications Workers of America and the AFL-CIO. James R. Hobson, a Washington, D.C., attorney representing the Ad-Hoc Association, said Feb. 24 that his clients “haven’t had a chance yet to absorb the decision.”
Within the 1996 RF radiation guidelines, the section in contention exempts “certain classes of facilities from having to file routine Environmental Assessments,” said Judge John M. Walker, who wrote the decision.
The court was cognizant that the National Institute for Occupational Safety and Health, one of the federal agencies that reviewed the FCC’s proposed rules, had objected to “undocumented self-certification of compliance” in lieu of full environmental assessments. However, the circuit court cited earlier precedents involving challenges of FCC regulations governing broadcast media. It found that “ample sanctions exist for false statements … and licensees are well aware of their duty … to be scrupulous in providing complete and meaningful information.”
Furthermore, the court resolved that the FCC took into account a “worst-case analysis … of multiple antennas mounted on a single tower and determined that radiation levels in publicly available areas will be many times below maximum permitted exposure levels.”
Included in the category of facilities exempt from Environmental Assessments are “tower-mounted telecommunications antennae 10 meters or higher above ground and rooftop antennae emitting less than 1,000 watts of power,” Judge Walker said.
This so-called “categorical exclusion” is significant because it covers “most if not all towers the industry builds these days,” said Michael F. Altschul, general counsel for the Cellular Telecommunications Industry Association, Washington, D.C.
Unlike their radio and television counterparts, wireless telecommunications networks “rely on power control and frequency reuse … so it is rare that we exceed a few hundred watts,” he added.
CTIA and AT&T Wireless Services Inc. were intervenors in the case on the side of the FCC. Joel Marcus, the FCC attorney who represented the agency in this proceeding, said he is not authorized to comment on it.
The 1996 radio-frequency radiation guidelines “mostly incorporate maximum permitted exposure limits suggested by the (National Council on Radiation Protection and Measurements), together with certain other features of the (American National Standards Institute) standard,” Judge Walker said.
“The FCC elected to exempt (certain) facilities after determining that they pose no risk of exposing humans to RF radiation in excess of MPE levels.”
The petitioners also challenged portions of the Telecom Act of 1996 that the FCC incorporated into its 1997 order.
“In particular, the Act pre-empted state and local governments from regulating the placement, construction or modification of personal wireless service facilities on the basis of the health effects of RF radiation where the facilities would operate within levels the FCC determined to be safe,” Judge Walker said.
CTIA’s Altschul said the circuit court’s affirmation of this provision underscores in a significant way the power of Congress and the FCC “to establish a national wireless network.”
Petitioners also charged that the FCC violated the federal Administrative Procedure Act because it failed to consider evidence of harmful effects from non-thermal levels of radiation.
“Thermal effects are known, and there is a scientific consensus. Non-thermal, also known as cancer-causing, is unproven and speculative, and it is reasonable for the FCC to reject scientific theories that are not yet established,” Althschul said.
“This is the first time, to my knowledge, that a court has reviewed the state of the science, and it came out quite strongly on the side of the FCC.”
The court noted that both ANSI and NCRP, on which the FCC relied in formulating its order, considered non-thermal effects.
“The ANSI found that `no reliable scientific data exist indicating that non-thermal … exposure may be meaningfully related to human health’ and concluded that its exposure standard `should be safe for all,’ ” Judge Walker said.
“The NCRP found that the existence of non-thermal effects `is clouded by a host of conflicting reports and opinions.’ “
Of equal importance, the court took note of the FCC’s knowledge that both ANSI and NCRP have standing committees involved in ongoing evaluation of new, publicly available scientific research related to health effects. The judges found the FCC’s expectations reasonable that other federal agencies would follow and act on new knowledge. Likewise, they found reasonable the FCC’s promise to “monitor … and revisit the issue” as measurement technology improves.
Federal agencies that review proposed FCC rulemaking according to health and safety criteria include, most importantly, the Environmental Protection Agency, which the court said has “been assigned the lead role in RF radiation health effects since 1970.” The Food and Drug Administration, the Occupational Safety and Health Administration and NIOSH also play a role.
“The argument that the FCC should create greater safety margins in its guidelines to account for uncertain data is a policy question, not a legal one. As a policy matter, an agency has some leeway … to resolve that uncertainty by means of more regulation or less,” Judge Walker said.
“The FCC concluded that requiring exposure to be kept as low as reasonably achievable in the face of scientific uncertainty would be inconsistent with its mandate to `balance between the need to protect the public and workers from exposure to potentially harmful RF electromagnetic fields and the requirement that the industry be allowed to provide telecommunications services to the public in the most efficient and practical manner possible.’ “
