That was the conclusion of the U.S. Court of Appeals for the D.C. Circuit, which sent back to the FCC its decision, under previous chairman Ajit Pai, not to update its radiofrequency (RF) emission guidelines, concluding the FCC "failed to provide a reasoned explanation for its determination that its guidelines adequately protect against the harmful effects of exposure to radiofrequency radiation unrelated to cancer," and totally dropped the ball when it came to responding to comments.
The court said that there may be good reasons not to change the standards, but the FCC did not supply them. "To be clear, we take no position in the scientific debate regarding the health and environmental effects of RF radiation," the court said. "[W]e merely conclude that the Commission’s cursory analysis of material record evidence was insufficient as a matter of law."
The FCC will have a chance to go back to the drawing board and provide the court with "a reasoned explanation for its determination that its guidelines adequately protect against harmful effects of exposure to radio frequency radiation unrelated to cancer."
The FCC is required by law to periodically evaluate the impact of RF devices — these days most prominently smartphones — on quality of the "human environment."
During oral argument earlier this year, the judges had appeared to be leaning toward ruling against the FCC.
The FCC last updated its RF guidelines in 1996.
Hearing the case were Judges Karen Henderson, Patricia Millett and Robert Wilkins, with Wilkins writing the decision and Henderson partially dissenting because she would have denied the petitions in full.
A 2-1 majority of the three-judge panel of the court that heard the appeal said that the FCC had reasonably concluded that RF radiation under the FCC limits does not cause cancer, but that it had unreasonably failed to consider evidence that it can cause "health effects" unrelated to cancer.
"That failure undermines the Commission’s conclusions regarding the adequacy of its testing procedures, particularly as they relate to children, and its conclusions regarding the implications of long-term exposure to RF radiation, exposure to RF pulsation or modulation, and the implications of technological developments that have occurred since 1996, all of which depend on the premise that exposure to RF radiation at levels below its current limits causes no negative health effects," Wilkins wrote. "Accordingly, we find those conclusions arbitrary and capricious as well. Finally, we find the Commission’s order arbitrary and capricious in its complete failure to respond to comments concerning environmental harm caused by RF radiation," the court concluded.
During oral argument back in January, the judges had appeared concerned that the FCC was relying on what appeared to be cursory sign-off by the Food And Drug Administration, pointing out that the record did not cite any input from an FDA committee or FCC working group charged by Congress with reviewing RF standards.
Judge Wilkins went so far as to assert that he was inclined to rule against the FCC because there had been no reference to either committee.
The groups challenging the FCC guidelines — Environmental Health Trust (EHT), Children's Health Defense (CHD) et. al. — had argued that the commission had basically ignored evidence showing that its guidelines allow levels of radiation harmful to "humans, wildlife and the environment."
“We are delighted that the court upheld the rule of law and found that the FCC must provide a reasoned record of review for the thousands of pages submitted by the Environmental Health Trust and many other expert authorities in this precedential case. No agency is above the law," said EHT president Devra Davis. "The American people are well served.”
In her partial dissent, Judge Henderson said the court was substituting its judgment for that of the FCC when "the agency’s path may reasonably be discerned," meaning she was willing to give deference to the FCC's expertise and would have denied the petitions.
CTIA, which represents the cell phone industry whose RF radiation was in play, emphasized the part of the FCC decision the court did not dispute as well as the fact that the court did not weigh in on the science one way of the other.
“Today’s appeals court decision expressly upholds the FCC’s determination that mobile phones and networks do not cause cancer," said CTIA in a statement. "With respect to other claims, the opinion “take[s] no position,” and simply directs the FCC to more fully explain its conclusions. The consensus of the international scientific community is that radiofrequency energy from wireless devices and networks, including 5G, has not been shown to cause health problems. The evidence includes thousands of peer-reviewed studies conducted over decades and includes input from expert organizations such as the FDA, World Health Organization and American Cancer Society. The court’s opinion does not dispute these conclusions.”
An FCC spokesperson would only say that the commission has received the opinion and is "reviewing [it] carefully."
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Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.
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