CHD Successfully Challenges the FCC’s Outdated Wireless Radiation Exposure Guidelines

On Feb. 2, 2020, Children’s Health Defense (CHD) filed a case against the Federal Communications Commission (FCC), challenging its decision not to review its 25-year-old radio-frequency emissions (“RF”) guidelines, which regulate the radiation emitted by wireless technology devices (such as cell phones and iPads) and infrastructure (cell towers, Wi-Fi and smart-meters), and to promulgate biologically and evidence-based guidelines that adequately protect public health.

In 1996, the FCC adopted guidelines which only protect consumers from adverse effects occurring at levels of radiation that cause thermal effects (temperature change in tissue), while ignoring substantial evidence of profound harms from pulsed and modulated RF radiation at non-thermal levels. The FCC hasn’t reviewed its guidelines or the evidence since, despite clear scientific evidence of harm and growing rates of RF-related sickness.

In 2012, the Government Accountability Office of Congress published a report recommending that the FCC re-assess its guidelines. As a result, in 2013, the FCC published an inquiry to decide whether the guidelines should be reviewed. It opened docket 13-84 for the public to file comments. Thousands of comments and scientific evidence by scientists, medical organizations and doctors, as well as hundreds of comments by people who have become sick from this radiation were filed in support of new rules. Nevertheless, on December 4, 2019, the FCC closed the docket and published its decision, affirming the adequacy of its guidelines without proper assessment of the comments or the evidence.

The FCC decision provided the first opportunity in 25 years to challenge the agency in court, expose its fecklessness, and give a voice to those who have been injured by the FCC’s disregard for human health. The lawsuit, called a Petition for Review, contends that the agency’s decision is arbitrary, capricious, not evidence-based, an abuse of discretion and in violation of the Administrative Procedures Act (APA).

CHD’s lawsuit was joined by nine individual Petitioners. (Plaintiffs are referred to as petitioners in such lawsuits.) They include Professor David Carpenter MD, a world-renowned scientist and public health expert who is also the co-editor of the BioInitiative Report, the most comprehensive review of the science on RF effects; physicians who see the sickness caused by wireless radiation in their clinics; and a mother whose son died of a cell-phone related brain tumor.

CHD’s lawsuit was filed in the U.S. Court of Appeals for the Ninth Circuit. However it was transferred to the U.S. Court of Appeals for the DC Circuit where it was joined with a similar lawsuit filed by the Environmental Health Trust (EHT) and Consumers for Safe Cell Phones. The main brief and the reply brief were filed jointly by all Petitioners. CHD’s case was initiated and led by Dafna Tachover, Esq. The attorneys representing CHD are Robert F. Kennedy Jr., CHD’s Chairman, and Scott McCollough, who is the lead attorney for the case. Scott McCollough is a seasoned telecommunications and administrative law attorney.

The brief cites thousands of studies and medical reports, including those conducted by U.S. government agencies, showing clear evidence of harm, and references hundreds of testimonials by people who have become sick from radiation within the FCC-allowed levels. The petitioners also argued that the FCC ignored evidence of mechanisms of harm; their guidelines do not apply to actual use of cell phones and disregard the biological effects of crucial elements of this technology such as pulsation, modulation and specific frequencies, nor do they address the current reality of constant and cumulative effects of exposure to many sources of radiation over many years.

While powerful, these bodies in fact represent a minority opinion. The brief provides evidence showing, for example, that courts have found the International Commission on Non-Ionizing Radiation Protection (ICNIRP) on which the FCC relied, to be biased and determined that its recommended guidelines and scientists are not credible. The petitioners refuted the FCC claim that not much has changed since 1996, and that even if the evidence may have been “controversial” 20 years ago, it is now clear. The brief also showed that the FCC used unauthorized materials, misconstrued evidence brought by the petitioners, and misrepresented other government agencies’ positions.

According to the Court’s decision, the FCC failed to provide evidence to support its decision in regard to the non-cancer health effects and that it also failed to respond to the extensive evidence that was filed with the FCC (via the docket which is also called “record”) that shows that the current radiofrequency emissions guidelines may cause negative health effects unrelated to cancer. The court stated that, the FCC’s 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 effects of wireless technologies that were developed since 1996. The court also found that the FCC 2019 decision was arbitrary and capricious in its failure to respond to comments concerning environmental harm caused by RF radiation. 

The court’s decision continued to say: “…the FCC completely failed to acknowledge, let alone respond to, comments concerning the impact of RF radiation on the environment…The record contains substantive evidence of potential environmental harms.”

CHD Chairman and attorney on the case Robert F Kennedy Jr. said: “The court’s decision exposes the FCC and FDA as captive agencies that have abandoned their duty to protect public health in favor of a single-minded crusade to increase telecom industry profits.”

The court ruling was a two-to-one panel decision. Judge Robert Wilkins wrote the majority opinion. Judge Patricia Millett joined him and Judge Karen Henderson, who presided over the panel, issued a dissent.

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