CHD v. FCC: 5G & Wireless Radiation Guidelines Lawsuit
Read About the Case:
Watch CHD’s Press Conference — Historic Win
Case Summary – Challenging the FCC’s Wireless Radiation Guidelines
PRESS CONFERENCE will be held on Monday, August 16, 2021, at 10:00 am PT / 1:00 pm ET. REGISTER NOW.
On August 13, 2021 the U.S. Court of Appeals for the D.C. Circuit ruled in favor of the Children’s Health Defense (CHD) in its landmark case against the Federal Communications Commission (FCC) challenging the FCC’s decision not to review its health and safety guidelines regarding 5G and wireless technology. The court’s decision states that the FCC failed to provide a reasoned explanation for its determination that its current guidelines adequately protect against harmful effects of exposure to radiofrequency radiation and failed to review the extensive evidence – scientific evidence and evidence of existing sickness – that was filed with the FCC.
On February 2nd, 2020, the Children’s Health Defense (CHD) filed an historic 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 is a seasoned telecommunications and administrative law attorney.
STAGE 8 – Court’s Decision – We Won
The U.S. Court of Appeals for the DC Circuit published its decision Aug.13. The court ruled that the FCC failed to consider the non-cancer evidence regarding adverse health effects of wireless technology when it decided that its 1996 radiofrequency emission guidelines protect the public’s health. The Court ruled: “The case be remanded to the commission to provide a reasoned explanation for its determination that its guidelines adequately protect against harmful effects of exposure to radiofrequency radiation…”
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.
Court Documents: Court’s Decision
Court Documents: Court’s Judgment
The Defender Article: ‘Historic Win’: CHD Wins Case Against FCC on Safety Guidelines for 5G and Wireless
Fierce Wireless: Court orders FCC to revisit its safety guidelines for RF radiation
The Epoch Times: Court Demands FCC Reconsider Its Wireless Safety Standards
STAGE 7 – Oral Arguments – Jan. 25, 2021
The Oral Arguments took place on January 15, 2021. The three-judge panel assigned to the case and presiding over the hearing included Judges Karen Henderson, Patricia Millet and Robert Wilkins. Attorney Scott McCollough, CHD’s lead attorney for this case, gave the oral arguments on behalf of all the petitioners. Because of the pandemic, the oral arguments were made over Zoom. (The public was only able to listen to the hearing but not to watch it.) Each side was allocated 10 minutes but the judges started to ask questions before the parties were able to complete their arguments. In the hearing, Judge Wilkins told the FCC attorney, “I’m inclined to rule against you.” Judge Millet asked the FCC why neither the FCC nor the Food and Drug Administration reviewed the evidence of non-cancerous effects of wireless, why the FCC addressed only cell phones, and why they didn’t address the cumulative effects of the numerous devices now commonplace. The judges ordered the FCC to file supplementary evidence detailing the existence and composition of the two FDA working groups tasked with reviewing FCC guidelines by the end of the next business day.
Press Conference: Watch Now
Oral Arguments: Listen Now
Oral Arguments: Transcript (non-official)
The Defender Article: Judge to FCC: ‘I am Inclined to Rule Against You’
STAGE 6 – Filing of the Joint Appendix – Nov. 14, 2020
The Joint Appendix (JA) is the collection of all the evidence that was referenced in the briefs to support the arguments made. The JA is filed with the court after all the briefs have been filed. In this case, the JA includes 440 documents with a total of approximately 11,000 pages of evidence. The table of contents alone is 54 pages long. Because of its size, the JA was divided into 27 volumes. Just printing and filing it with the court cost $15,000.
The Defender Article: 11,000 Pages Filed in Landmark 5G Case Against the FCC, Hearing Set for Jan. 25
STAGE 5 – Petitioners’ Reply Brief Filed – Oct. 19, 2020
The Petitioners’ Reply Brief, which is a response to the FCC’s brief, was filed on October 19, 2021. The petitioners pointed out that the standard-setting bodies the FCC relied upon in reaching its decision are biased, industry-related organizations. While powerful, these bodies in fact represent a minority opinion. The brief provides evidence showing, for example, that courts have found 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.
Court Filing: Petitioners’ Reply Brief
STAGE 4 – FCC (Respondent) Brief Filed – Sep. 22, 2020
The FCC’s (the Respondent) brief was filed on September 22, 2020. (Respondent is the term used for the defendants in PFR cases.) The FCC argued that it had reasonably relied on the expert advice of other federal agencies and standard-setting bodies in its decision that no evidence of biological and adverse health effects from non-thermal levels of wireless radiation exists, and therefore, that no change to its 1996 RF emissions guidelines were warranted. The FCC asserted that its review of the evidence complies with the standards set out by the APA and by court decisions.
Court Filing: FCC (Respondent) Brief
STAGE 3: Amicus Briefs in Support of Petitioners’ filed – Aug. 5, 2020
Amicus Brief: National Resources Defense Council (NRDC)
Amicus Brief: Building Biology Institute
Amicus Brief: Joseph Sandri & NIEHS Former Director, Linda Birnbaum
STAGE 2 – Petitioners’ Opening Brief (main brief) Filed – Jul. 29, 2020
The Opening Brief in the case was filed on July 29, 2020. It is the main brief of the petitioners in the case. The brief lays out evidence showing that the FCC’s 1996 guidelines, which are based on the assumption that non-ionizing radiation at non-thermal levels (levels that do not change temperature in tissue) cannot have biological and adverse health effects, ignore human biology and are based on an obsolete, false and disproven scientific assumption promoted by physicists and engineers. 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.
Court Filing: Petitioners’ Opening Brief
STAGE 1 – Lawsuit Filed – Feb 2, 2020
On February 2, 2020, the Children’s Health Defense filed a lawsuit against the Federal Communications Commission. The case was filed in the US Court of Appeals for the Ninth Circuit. The lawsuit was filed under the Administrative Procedures Act (APA), which governs the process by which federal agencies develop and issue regulations. Lawsuits that are filed under the APA are termed a “Petition for Review” (PFR). The brief that is filed in this stage is not the main brief but the filing that outlines the basis for the PFR. The brief that we filed is an excellent and relatively short summary of the issues discussed in the lawsuit.
Court Filing: Petition for Review
The Defender Article: Lawsuits Expose FCC’s Failure to Weigh Evidence of Health Impact of Wireless Technology
Documents Filed with the Court
Petitioners’s Affidavits (Partial)
Links to the 27 Joint Appendix binders (the Evidence)
The FCC’s Decisions Challenged by the Case
The 2013 Notice of Inquiry (The FCC inquiry which is the basis for the FCC 2019 decision).