CHD vs FCC Press Conference
– Hi everyone, thank you for joining us to the Children’s Health Defense press conference for the oral argument that took place yesterday, Monday, January 25th in the United States, Court of Appeals of the DC circuit. I’m going to start with a few preliminary issues. First before I continue, I would like, first this press conference will last for an hour. We’re going to have three speakers, Robert Kennedy, Jr., the Children’s Health Defense chairman, and co-counsel on our case against the FCC, Scott McCullough, who is our lead attorney on this case and who did the oral arguments on behalf of both the Children’s Health Defense and the Environmental Health Trust, which is the other petitioner group in this case.
I will give, if you have any questions, please submit them through the Q and A system. And if you are from media, please state it. And also your affiliation. I will start with a little bit of a background about the case and about the hearing yesterday. And then we will have a little bit of a Q and A session with Robert and Scott as to what we heard yesterday in the court. In 1996, the FCC was entrusted by Congress with establishing guidelines to protect the health and safety of the public, including children, in regards to wireless technology radiation.
Even though our use of wireless technology have completely changed, the radiation level are millions of times higher, thousands of peer review scientific papers showing this guidelines are obsolete. And despite evidence of growing sickness, the FCC has not reviewed its guidelines since. In 2012, the government accountability office of Congress, published a report recommending that the FCC reassess its guidelines.
As a result, in 2013, the FCC opened an inquiry, which was a docket 13-84, asking for the public comment as to whether or not the FCC should review its guidelines. Despite overwhelming evidence that was submitted to the docket by hundreds of individuals, scientists, scientists groups, which indicated clear harm from cell phone, wifi and cell towers and showed an urgent need for new biologically based guidelines, after six years in December of 2019, the FCC closed the docket and published an order deciding not to review its guideline, that there’s no evidence to require it to really review its guidelines. The FCC order didn’t analyze the evidence in the docket.
Essentially, it was summarized by the FCC in six paragraph and dismissed the evidence in conclusionary manner without meaningful analysis of the evidence as would have been expected from an agency after a quarter of a century. 60 days later, on February 2nd, the Children’s Health Defense filed a lawsuit challenging the FCC decision, the Environmental Health Group also challenged the FCC guidelines and decision. The case was brought under the Administrative Procedure Act and claims that the FCC decision is therefore capricious, arbitrary, not evidence-based and abuse of discretion. And our briefs, I think, leave no doubt that indeed it is. On August 14, we filed our main brief in the case.
On September 22nd, the FCC filed its brief. And on October 19, 2020, we filed our response, our reply brief to the FCC brief. Most recently we filed what’s called a joint appendix. And that is essentially the evidence in the case. And our joint appendix contains 440 references and 11,000 pages of evidence. So when people tell us that there’s no evidence, well, there is quite a lot of evidence and those 11,000 pages are really, not even all of the evidence. They are just the ice, the tip of the iceberg over the evidence, because in this kind of cases, we cannot choose the evidence we use to prove our point.
We have to rely on the evidence that was submitted to the docket and this is the only evidence we can use. This kind of cases are tough cases, they are not regular cases, I think, you know, a lot of people expected to see a more elaborate hearing yesterday, this kind of case is against the government under the APA, that Administrative Procedure Act, are essentially based on, most of the cases down through the briefs. And the purpose of a hearing is only to help the court clarify points that the court may have questions about. Usually this, you know, the parties do not get a lot of time to speak.
And in this case, we filed a motion to the court to give us 20 minutes to speak and five minutes for the NRDC, which filed an Amicus brief in this case. We explained the court that there are two groups of petitioners and each group of petitioners has different emphasis in the case and different issues that are, they are expertise. And therefore we ask that both groups will be allowed to speak. However, and unfortunately, the FCC, the, sorry, the court decided that we were going to have only 10 minutes to speak. And that only one attorney will be allowed to represent both groups of petitioners, the EHT group and the CHD group.
After deliberation, both groups decided that Scott McCullough, who is the Children’s House Defense attorney and who was part of this press conference will be, will do the arguments for both sides. I think, you know, when we were first heard that we have only 10 minutes to do the oral arguments, we were all concerned. You know, it didn’t, we felt that, you know, that that may be bad news for us. However, I think we were relieved yesterday as the hearing progressed.
You know, I’ve been working on this issue for many years now and fighting to expose the failure of the FCC and to expose the truth that there’s ample evidence of harm has been an uphill battle and frustrating battle not just for me, but for many. The courts repeatedly preferred to dismiss cases on this issue. And many of us lost faith in the legal system and, that the legal system is really there to protect our rights. I think that is especially true for those of us who’ve been injured from this technology as myself and most of us have been quite skeptic about the hearing.
And after yesterday, I think many of us are relieved. I think that we saw a court. I think we saw a court that we can all be proud of. I think the judges were well-versed in the issues we raised in our brief and their questions were excellent and right on point. After the hearing was concluded yesterday, I got a call immediately from Robert, Robert Kennedy, the Children’s Health Defense chairman. And he said that listening to this hearing was like watching a favorite movie. Robert you’ve been, you’re an experienced attorney, and you’ve been involved in many cases regarding government failures. Can you comment about your impression of the hearing we had yesterday?
– Yeah, I mean, I would repeat to you that, Dafna, that it was, you know, Scott did an amazing job and it was like watching a wonderful movie, where the good guy wins in the end. Because we had, as you said, we went in very worried that, it was gonna be a challenge to be able to make our case in 10 minutes. It’s a big issue and we had 11,000 pages of documents and it summarized as the occupants and our, you know, the magnitude of our case, in that time was just a challenge.
But we were blessed with what we call a hot bench with judges who essentially, where Scott left off, the judges took up and, you know, a lot of the work of, on the argument was done by the judges who were clearly very familiar with the case, with the evidence and were extremely skeptical of FCC’s position. And, you know, the big issue in this case is very, very strong mandate of deference to the regulatory agencies and the courts normally let the agencies have a tremendous amount of rope even when they’re doing things that are clearly wrong. And that’s always a frustration to our side, for people who understand, the regulatory agencies become captured. They are corrupted by the industry they’re supposed to regulate.
It becomes sock puppets for the industry they’re supposed to regulate and FCC these days really just a wholly owned subsidiary of the telecom industry. It has almost no independent life on its own. And yesterday I think the judges exposed that. And you know, the FCC was left in this really untenable position of saying, there is absolutely no evidence. I was shocked by how many times their attorneys said this, Wireless radiation causes any harm outside thermal effects.
And, you know, it was kind of strange knowing that the judges were sitting on 11,000 pages of the studies, 400 studies that show terrible harms, and there were thousands of studies, that we cited in the brief that were not in that evidence file that show that there’s harms outside of non-thermal effects. And the judges understood that and they made that distinction. And I guess one of my, I had many, many favorite parts of the , you know, of that hearing.
One of them was, when the judge was questioning, it was really like a tag team but she was questioning the attorney for FCC and she kept saying, well, she kept being facially deferential. In other words, you know, it was almost a, was a biting kind of irony, she kept saying, “Well, you’re the expert here.” The argument they were making at that time is indeed had been scienced at the, the regulatory agencies had to look at this. Oh, he said, “I’ve never looked at this.” And anytime they did, EPA and FDA and everybody else and the national toxicology program have all said, “Hey, this is really bad. Wireless radiation is extremely toxic, extremely damaging. And you need to do the studies.”
Their position is, “Nobody’s ever said that. There is no evidence.” And the judge is, “Well, is there evidence of safety?” And they said, “Yeah, we have the studies of stationary sources.” And these are from 1996, the stationary sources. And the judge said to her, “Well, you’re the expert here and not me, but, explain to, use your expertise to explain something to me. Is an iPad, a stationary source?” And then she said, “Is a cellphone a stationary source? Is a laptop computer a stationary source?” And the point she was making is, since 1990s, 1996 they didn’t have iPads, they didn’t have cell phones, they didn’t have laptops. Now every kid’s got them and they’re holding them next to their head or in their lap or in their pockets, they’re broadcasting. These kids are learning on them. They’re recreating on them. They’re sleeping with them.
And they didn’t exist in 1996 and they’re not stationary sources. And they’re all over us all the time. And they’re all over our children. And she was making the point, how can you say, based upon an ancient study, a quarter century old study, that said a stationary source is not a harmful? How can you extend that judgment to this explosion of iPads, of cellphones, of wireless devices that have now taken over our lives and the NRM with no scrutiny by the regulatory agencies. Oh, you know, this would never have happened Dafna without your persistence, you were, you’ve taken this like a, like an angry Bull dog with a bone and not let go of it. And no matter what, all the times you’ve been beaten down and, you know, and by courts and by regulatory agencies and by the press and everybody else, you have not let go off the bone and you got us all involved in it. And you know, you’re really a hero Dafna. And thank you for being a leader on this issue.
– Thank you so much, Robert. And I cannot agree more but everything you said, not about me, but the rest of it. Thank you. I think, and first I would like to say, thank you, Robert. I think that I’m so grateful that the Children’s Health Defense decided to take this on. I think the fact, this has been a huge case and we, and it required massive resources of all sorts. And I think CHD provided us those resources and expertise and access to other attorneys who supported our case. Scott know, we know to prepare this case, we had three moot courts with different attorneys to make sure that Scott is on his top game yesterday. So I’m really grateful for everything. And I’m really grateful for the privilege to be able to lead this case. And thank you for that.
You know, Scott yesterday, you know, you started the opening, we worked a lot on preparing those 10 minutes that you were allowed to talk. Although we knew that probably you will not be able to go past your minute two, and actually that exactly what happened. You started the oral arguments with a quote which we were all kind of like disturbed by. It’s a quote of one of our petitioners, Michelle Hertz who got sick from wireless. And when she called the FCC to report her injury and, you know, hoping to get some regress from the FCC, which is the regulating agency on this issue, she was told by the FCC, “We deal with, we don’t deal with humans, we deal with frequencies,” and they hang up the phone on her.
And in your argument you said that essentially that one sentence is really encapsulates what the situation is here in regards to how the FCC has been abdicating its responsibilities under the law to protect the health and safety of the citizens of this country. And I think that the hearing left me feeling that our briefs were very successful in conveying this message to the court. And I wanted to know if, did you also come out of the hearing feeling that indeed the court comprehend the extent of the FCC failure?
– Well, it’s always really difficult to draw conclusions from what happens at oral argument. I can’t tell you how many times I’ve walked out feeling just horrible. This case is lost only to win or to walk out saying, “I got this in the bag,” only to lose. We are fortunate that we drew a panel that dedicated obviously a lot of time to reading the briefs and drilling down and trying to figure out the issues. And so we can all feel confident that they’re gonna do the work that’s necessary to reach whatever result they end up coming up with. Their questions were great. They gave me really hard questions and they gave the FCC really hard questions. So however this turns out, I’m gonna know, and quite frankly, I don’t always know. So we’re lucky here, that we have a panel that is really gonna do the best they can and have put the work into it. They’re not just going to reflexively, as quite often happens, and certainly has happened to me. Just say, “Deference, FCC gets deference and dismissed.” Another-
– Well, Scott, can you just explain the word deference? I mean, this is one, sorry for interrupting. This was one of my question. I think for a lot of people, the word means nothing. And I do think we should clarify it, I apologize.
– Yeah, that’s really a short hand term in the, in administrative law that has a meaning a little bit different than what normal people use when they give deference to someone typically older or more experienced but it is relate. The court’s role here and particularly, when as is the case with the FCC and a few other major agencies, the case goes straight to the court of appeals. There are many, many agency cases that first go to a federal district court, but Congress chose to subject certain major agencies to skip that step and to send them straight to the court of appeal.
And that alone signifies that Congress was entrusting even more confidence in the agency’s ability to get things right and make difficult decisions. Now as like Robert, and certainly I know, oftentimes the opposite is what happens, but the Congress initially thought, okay, we’re gonna create these and we want to kinda insulate them let them, give them a lot of room to make policy judgment, do the trade-offs that are required, distill the science and become experts in it and make these decisions that judges quite frankly, who are generalists, they see all kinds of cases, are not fit to do or even Congress is not fit to do. You know, Congress originally created administrative agencies so that they could localize expertise, to make these decisions, these difficult decisions, hard questions of policy, lots of balancing, lot of science.
And so what the concept of deference is, especially when you’re at an appeals court level, is we’re not gonna get in the middle of the exact decisions that are made here. We’re, if it’s a finding of fact, we’re not going to disturb it, even if we might have made a different fact finding in the first instance, all that we are going to require is that there be some evidence, substantial evidence is the legal term but it really means more than a scintilla or basically any evidence that would support the factual fight. If they make a policy judgment, the courts very much defer to the policy judgment.
So long as that agency has actually thought about it, what these courts do under the deference doctrine is they just have to make sure that the agency does the things it is supposed to do. Think about the things that it is supposed to think about. And then most importantly, provide in its order, enough writing to articulate what they looked at, what they considered and what caused them to reach the result that they did. And if an agency does that, especially in the kinds of cases where there are what we call maximum deference, if the court can discern the path that the agency followed, if the agency based it on some evidence of record and it explains it all, then they’re gonna, the court is gonna affirm, even if it might have reached a completely different outcome in the first instance, that is basically the deference doctrine. Now there are different kinds of deference depending on what kind of case it was.
And those of you who listened to the argument might have noticed that that was one of the first things we discussed with the court. And it got very arcane. We were throwing around a lot of administrative law terms but the level of deference that is assigned, very much depends on the nature of the case that was before the agency. If they are using something that is called, notice and comment rule make, which is the kind of proceeding where an agency is actually establishing a rule and has published that rule, proposed rule in advance and received comment on it. Then they receive a level of deference but it is less than what they received in other contents. In this situation, the commission’s contention is that it was not engaging in notice and comment rulemaking.
Instead, it was trying to decide, whether to engage in notice and comment rulemaking. And the commission’s argument is, we decided not to do anything. And the courts have given them a lot of room, typically, when that isn’t a decision by an agency. And one of the other reasons is, well, agencies have a budget, they have priorities. They’re the ones who get to decide what they are. They only have a certain amount of time and money. So we’re gonna let them make these choices on what their priorities are. The problem here is that this wasn’t just a decision to do nothing. That’s not what this was. It, they in fact, made very substantive inclusion, even though it was only in six paragraphs. They in fact applied their 1996 rules to new things.
New things like Robert just mentioned, that not only did not exist, but were not even imagined in 1996. I mean, I was around in 1996, I was doing FCC work in 1996. And I can tell you, nobody imagined a scenario like we have today with wireless everywhere, on everything with all of these different frequencies and pulsation and modulation schemes and all of these in-points just bathing us in radio frequency all of the time. So, you know, our main point to the court is, this was not just a rule make. I mean, not just a decision whether to do rule make. It was in fact a substantive decision where the commission was carrying out its duty under the statute to have and maintain rules that protect, health, safety and the environment. So we of course, were arguing for less deference. And the commission of course, was arguing for the most deference. And that’s gonna be an important part where, however, the court lands on this, that’s gonna be the key to how they analyze the issues after. I hope that’s helpful.
– Yeah, and I think, I dunno. So I think that a major part of the FCC argument was that they are not a health agency and therefore in fact they rely on other agencies to make the determinations. And they, in this case, relied on the FDA. And when they were questioned by the court as to whether or not their reliance on the FDA was reasonable, one of the most shocking statement to me by the FDA, by the FCC was that they actually should not be even, they should not be even be required to verify that the FDA did its job. So if the FDA tells them there’s no evidence, that should be sufficient to release the FCC from its duty to protect the public safe and health, safety, health, and safety and in regulating this topic, I mean, is that really that outrageous in terms of decision, reason decision-making by an agency, Scott?
– Well, I mean, we can all, of course, and I think there’s a lot to be said for it, argue with the decision that Congress made in 1996 to give this to the FCC, rather than others, as the primary agency with jurisdiction. You know, it probably should have gone to the EPA or some agency within the Department of Health and Human Services, maybe not the FDA. They have several health and services agencies. If, you know, we can all argue and I would be happy to go to Congress and try to convince them that they should-
– We’ll take you.
– Send it to a different agency. And this gives rise to another follow-up on Robert’s thing. You know, I’ve been doing FCC work since the early eighties and had occasion to get familiar with FCC things as, you know, as early as the, you know, the seventies, and over all of this time, it has become obvious that the notion of regulatory capture, which by the way it doesn’t mean corruption necessarily it, but agencies that are charged with regulating entities almost inevitably become captured by them, their language is adopted from the industry.
As they begin to understand the industry which they regulate, which they must, you know, they are inculcated in how the industry does its things and they use the same language and they begin to get some kind of Stockholm syndrome by these agencies that they have to deal with. Quite frankly, that’s all they see most of the time. If you go to agencies like the FCC and I don’t mean to pick them out in particular, but if you go to agencies like the FCC, the people you see there are the industries it regulates. They have hall monitors that are there every day and they’re in there all the time. And it’s almost to the point to where they think you’re a normal citizen, what are you doing here? You don’t belong.
You know, in the early 95, around 1995 when the independent ISP industry began to arise, I had 7,000 ISPs, the dial-up ISPs everybody used to use, those were my clients. And we used to go to the FCC and you know, some of those folks maybe didn’t pay dissolve, at least they should have, you know, spoke a little roughly but they were real human beings. And they were bringing a vital resource to people. And yet it was like we were alien invaders at the FCC. And quite frankly, pretty soon they just put us all out of business, and that’s just the way the agency works. Congress didn’t say it to the FCC, “Protect the ISP industry.” It said, protect the telecom. And that’s what they’re doing.
So health is actually probably a, just naturally, an after thought to the commission, especially since it has no health people there. They have telecom engineers who are interested in making the telecom network work but all they understand is thermal dynamics. And so this notion of only thermal harms makes perfect sense to them. They don’t understand biological effects and they don’t want to, it makes their head hurt and-
– And I think that, sorry, yeah, I think that was one of the points that was, it was very interesting to watch the hearing yesterday. I think the judges were baffled by the fact that, how come the FCC is regulating this topic. And I think they made a few comments about that even though it’s not necessarily part of their, what they should require or has to be required or this is really not the issue of the case whether or not the FCC should regulate this issue. But nevertheless, quite a lot of the discussion yesterday was about whether or not, we’ve been addressing the right agency.
– That’s right. And you know, all that we know, all that we can do though, is go to the place Congress said go-to and deal with it in that context. And so we have, as a result of that delegation in 1996, and a fairly broad preemption language, which is quite unfortunate, preventing state and local governments from regulating health effects, which has now been extended to even, in some cases, tort liability for people who get brain cancer. And one of the issues in our case was, well, what about people who have radiation sickness?
– [Dafna] Right.
– And they’re made sick, but they can’t go anywhere in public. And now they wanna put a small cell right outside my bathroom window.
– They don’t want, they just do.
– And what do I do? How do I, how do I get accommodation? And we asked the commission, a lot of people did in the case below, what do we do about this? How do we get accommodations? Does the Americans with Disabilities Act, even apply anymore? And the commission did not answer that. And they told the court, they did nothing.
– And that’s actually was, thanks for raising the issue of radiation sickness, because, you know, in the end of the hearing, the court asked, if you want to add anything else. And basically your last point was about radiation sickness. You did ask the court to address the issue of radiation sickness. And do you mind saying a few words as to why it is so important that the court will address this issue? what it is that we want the courts to rule on and what would be the implications?
– Well, first of all, one of the things that I’m sorry about is that because of the way that the questioning went, I did not get to spend any material time on that topic because at least as far as I’m concerned, you know, the health effects are of course immense. But, since I’ve been involved in this, now for just a little bit over a year quite frankly, you know, that has been the thing-
– [Dafna] 15 months.
– Well, that has been the thing that has, you know, just upset me the most. I hear all the time from people who are just, their lives are devastated and they don’t know what to do. They don’t know where to go and they need help. Many of, you know, some are driven to suicide on account. And as a society, we owe them an answer, to use a legal term, we owe them an accommodation, but it is nowhere to be found. And that has been the thing that is most frustrating to me.
And now frustrating because I could not dedicate any time to it, I had prepared remarks on it. It’s just the questioning took us another direction. But in direct response to your inquiry, Dafna. As I, more or less, said a little while ago, we have state and federal law, the Disabilities Acts. There are state equivalents to the federal ADA. There are state equivalents to the federal Housing Act. There is the federal Rehabilitation Act, all of which recognize that people with disabilities need and deserve accommodation. And it extends not just to state or federal or local government actions, it also extends to private providers of certain kinds of services, including those here. Wireless service falls innately within the statutory definition of the type of activities that are covered by for example, Title III of the ADA. But whenever anyone tries to get an accommodation at the local level, whether it be going to the local government in the context of the zoning hearing opposing a cell cite, outside their house, they’re told sometimes quite rudely, by the attorney for the municipality, “You can’t talk about that here.” And the Zoning Commission or this City Council, won’t even listen to you. And that is because of the language. And, you know, it’s 332 c 7 of the Communications Act. If you write the provider directly and try to invoke Title III, they will tell you, “ADA doesn’t apply here, been preempted by the FCC rules.” If you go to your local school district and say, “I’m concerned about all of this wifi, it’s in the school.” They go, “These submissions are within FCC guidelines. It’s safe, FCC said so, ADA doesn’t apply preempt. If you’ve got a problem, go to the FCC.” So everybody is telling us, including some courts, where people have directly raised this, it, when it comes to smart meter, a lot of the State Commissions have said, “Sorry, not my deal. I can’t give you the accommodation here.” In fact, in some States they say, “Our state statutes are what apply and it’s mandatory to get a smart meter. And there’s no opt-out. And if you insist on having a regular meter, and assuming I’m even gonna give you that, so, I’m gonna charge you a bunch of money. And if you’ve got a problem with that, well, go to the FCC.” So we go to the FCC and what does the FCC do? Nothing, it does nothing. Despite all of the people who wrote to the commission on this subject, in this case, hundreds of people wrote with just horrible letters to read, it tears you up to read what these people told the commission. They did nothing, they didn’t mention it at all. They kicked everybody in the teeth. You know, we described it as a gut punch in our brief and that’s exactly what it was.
– So why is it important that the court, what would be the ramifications of the court addressing the radiation sickness issue or not addressing the radiation sickness? Why is it so important for us to make it a major issue in this case?
– The court is not going to give us an answer on the ADA issue. Remember, they are an appellate court and all that they can do is say, “Commission, you got it wrong, go back and do it again. You didn’t consider an important issue, consider and resolve that issue.” And we are hopeful that the court will decide that the commission had an obligation to decide this question and send it back to the commission. I, you know, the court cannot grant us relief other than remand to the FCC. That’s just the way, unfortunately, the Administrative Procedure Act works, it’s just the way it works.
So hopefully it’ll go back to the FCC. And hopefully when it goes back to the FCC, we will get an answer as to what people who need and deserve accommodations can do and what can be done for them. And the commission has many options in this regard. I mean, easiest one would be for the commission to go, “We’re not preempted, these are just general regulations. The ADA and all of the processes, the other agencies that administer these Disabilities Act State and local, can do so.
And if you have an issue that deserves, you know, needs attention by a court, state or federal, then you’re not preempted from bringing that action either.” That would be the easiest and probably the best. Now one district court has pretty much ruled that, but others have not, I mean, there’s mixed case law. So, you know, that’d be the easiest. Now on the other hand, the commission could say, “No, it’s preempted. I dunno, there’s no ADA anymore in this area, our rules preempt federal law,” which would be insane that a rule would preempt federal law but I’ve seen the commission do such things before. At which point we would probably just have to take it back up to the court of appeals. Or the commission could establish some kind of other process within the agency itself.
I, my greatest preference would be that the commission would just say these disability laws they just are allowed to operate the way that Congress designed them to operate. I would not very much be in favor of the commission itself establishing a procedure at the commission. In my life, well, in my life- Let me just, this won’t take very long. The complaint process at the FCC is horrendous. The pleading requirements are even more complicated and expensive than doing a, filing a federal district court case. And that one’s pretty particular too. If somebody comes to me, and I’ve done many, okay? ‘Cause I come from the Telecom, I represented competitive to the Telecom. I’ve done a few FCC complaints cases.
And what I tell people who come to me that says, “I’ve got this disagreement with this big carrier and we need to file an FCC complaint.” I tell them, “Write me a check for $200,000 ” So, it’s an expensive process. No normal human being can do it. You’ll get blown out if you try to do it alone and you can’t afford a lawyer. So no, I don’t want an FCC process. I want the ADA to work the way that it’s supposed to work to wake up and decide.
– So my question to you, I mean, you said, you know, you’re an FCC attorney and one of the things that, you know, this hearing got me to think of is, I think that the way I felt hearing the discussion yesterday is I heard the court sent a message, essentially. I think we all felt where the, what the court issues are with the FCC’s actions. I think one of the reasons I felt that, you know, the, I felt sorry, some parts on, I was happy that the FCC attorney was in such a bad situation.
And I think she had a tough situation considering the FCC order is so ridiculous. And so that was, it was apparent that the court actually recognize a situation that the FCC completely failed in doing its job. And what do you think is going on now in the FCC? I mean, I think they assume that the court is going to rule against them and that’s my feeling. And so the question is, what is it that you think that the FCC and industry is now planning in the FCC? So what we should kind of like prepare to in terms of our advocacy efforts and how to counter that?
– Well, first of all, I’m not gonna get a head of where we are. Okay, we are-
– Sorry, just a second. Robert you’re smiling. I mean, you have something to say about that? I mean, I sort of… Sorry.
– Well, let me just say, I’m not gonna speculate on what the commission may be thinking either. I think they do know now that they’re not just gonna, that this isn’t a cakewalk for them. And so they have to be planning.
– What is it that they’re planning? What is it that the industry is planning with the FCC? What does your, what do you think we should be aware of?
– Well, I think, you know, again, I don’t wanna even make any assumptions, but they are certainly planning to dedicate a lot more effort to trying to deconstruct the scientific case that we had built. And so I would expect more negative studies, to use a technical term.
– Do you think they’re working on a review of the other issues other than cancer and cell phone now?
– Well, certainly, I’m sure they were working the cancer thing from behind the scenes on the NGP. This is speculation, but it’s about to pass. I, it would not surprise me if many of the carriers had communications with the FDA about these matter.
– I mean, we’ve seen how the industry and these captured, you know, our agencies operate when it’s very easy thing for them to generate at ease, particularly epidemiological studies that will prove that cellphone radiation is safe. And if there’s a hallway industry of what we call biostitutes, which are scientists for hire, who will gladly gen up these studies, which, you know, which are designed to create certain outcomes, we say in our you know, in our industry that, the environmental law, as Scott and I are involved in and it’s definite that statistics don’t lie but statisticians do. And it’s very easy to, I know there’s another thing that says that, you know epidemiological studies are like prisoners of war. If you torture them, they’ll say anything that you wanted said. And we’ve seen that, we’ve seen it again and again and again, and I agree with Scott that right now, the industry is scrambling around to hire one of these big environmental consulting firms. And they’re gonna be given a duty to study the safety of cellphones and they’re gonna come out with funnies, I’m surprised they didn’t have that stuff. ‘Cause that would have been the easiest thing for them to do. They create these funny studies, they say to the judge, “Yeah, we looked at their studies, we looked at ours and we gained more weight on ours.” And the fact that they didn’t have anything is just sort of shocking.
– Well it’s not really, because the history of this case is that the only reason the FCC closed the docket, you know, this docket has been open, it was open for six years. And the reason the FCC closed this docket was the case of various municipalities around the country who sued the FCC for overreaching in its 2018 regulation in regard to 5G. So when they were sued, when the cities sued the FCC, the city of, the County of Montgomery argued that how can we decide on this case while there is an open docket on whether or not this technology is harmful? And so the FCC was forced to quickly close the docket.
And that’s why I don’t, we don’t have any real evaluations of the science. And that’s when one came out after the docket was closed. So that actually brings us to the next point. Let’s say the court action is going to rule in our favor. And a lot of people ask that question, what happens then Scott? And I know the answer is not going to be pleasant to a lot of people because it’s not much that we can get from this case. However, maybe it is important to explain why, never the less, this case is so important. Our stated requests for relief sought what’s known as vacatur and remand. Vacatur basically means that the court disappears the order.
In other words, it would be as if that order never existed. And the remand would be, depending on whatever the court rules and assuming the court does that, it would basically be an order to the commission that it do its job this time. Consider the evidence, respond to the arguments. And since it’s now been over a year since the order, and quite frankly, in the last couple of years before the order came down, there weren’t a lot of scientific supplementation, even though a lot of research has been done. And there’s been some recent things that have occurred. Switzerland recently, a taskforce there-
– And the diplomat finding regarding, from the state department. There is new evidence that could be brought. Procedurally, I think people need to be thinking about some more than just putting science in the record and filing personal comments. That was very, very helpful and necessary. But one of the things I observed from the record was, there wasn’t a lot of real organization curating so to speak and putting it all together by way of a form. The most useful compilation was, quite frankly, the BIR report. Something akin to that would be useful. But then there are some procedural things that we might recommend, again, as everybody keeps noting, the commission is not a health and safety agency.
And all that they really did in this case was send some letters to the agency saying, “Hey, we’ve opened this docket and invite your comments.” If you, for example, proceed under the NEPA statute, there are many more formal processes that could be used because quite frankly it is, it happens all the time. That you’ll have a regulatory agency that is oversee some activity that has environmental consequences but it doesn’t have people who understand the environment. And so there’s a whole bunch of processes that could be used by the commission to actually formally oversee input from all of these agencies.
I suspect they chose to do with the way they did so that they would only have to deal with one agency, the FDA, which was not truly inappropriate, sole choice. Instead they could bring groups of scientists from all of the agencies, they’re standing committees within the federal government to do that. They could seek collaboration with many of the state health and safety agencies.
Within the NEPA statute, there’s any number of processes that could be used, that could help the commission really understand the science here, because, you know, if we choose to be charitable to the commission and I always like to, despite my many disappointments over the 40 years I’ve been doing this. You know, it could be that they just can’t concede, that what we say is happening has happened, it could be that they just don’t understand biological impact. It could be that they’re-
– Come on, Scott, it’s their job to, if you cannot and do not, and say, ” I cannot do the job,” then give it to someone else. This is really not an excuse.
– Well, and the commission could do that too, by the way. It could say, “Yes, we are the agency with jurisdiction but we are going to assign this to somebody.”
– But they actually don’t wanna do this because it’s a captured agency and that’s the whole purpose of it being captured agency so that, there would not be a real review of the health and safety. And that is exactly why all the agencies have been defunded throughout the years. And why yesterday, the court spent a lot of time figuring out was the FDA, what are those experts committee that we’re supposed to review this issue and actually disappeared, right? One more comment, a lot of the questions that we had asked whether or not the FCC filed the document that there were, the supplement that, the supplemental that the court asked them to file. And the answer is yes. The FCC, I think filed about two hours ago we’re going to respond by tomorrow 5:00 PM. And in terms of how long can we expect before, how long do you think the court will take to render a decision in this case?
– Well, all I can do is speak to averages. And in this instance, I don’t think we could draw any inferences if it takes longer than average. Indeed in some respects, it might be a good thing if it takes longer than average. But typically speaking, you, from this court, the DC circuit they’re actually pretty good about getting their opinions out in comparison to some of the other courts of appeals. And on average, you will see a decision somewhere between four, six to eight months from submission, which was yesterday.
– Robert, I mean, you have probably more experience than all of us in terms of grassroots movement and what’s effective in order to get agencies to change. I mean, we put in the, the Children’s Health Defense put a lot of effort in this case and resources. You know, this is, you know, one, this is a landmark case. It’s not a case that happened, you know, every day. From your experience, what do you think would be the most effecting thing that our movement can do to create change? First to use, let’s say, if we get a decision in our favor, how to use it, and what it is that we need to do in the next six months until we get a decision with what we have right now.
– I think we have to keep the pressure up on the agency. I mean, the ultimate issue is you gotta get money out of the politics, because as you pointed out and Scott pointed out, the agency capture is not controversial. There’s hundreds of articles that document the process. It occurs as Scott says, directly and indirectly. It’s pervasive in all agencies it occurs the same, and in a lot of them, in some of them it’s innocent, but most of them may has become corrupt. And it’s reinforced through budgeting, you know, the friends of the agency and a legislator, in the Congress, for example, the people who fund that agency are the chairs of those committees that control the funding are usually chosen by industry. And then huge amounts of money are funneled into those particular politicians to make sure to keep that agency under control. That’s how they control them. They also, there’s just this natural attrition that occurs in government agencies, as regulators, as highly visible and powerful regulators approach retirement age, they know that they can pick up, they can quintuple their salary by going to work with the agency that they regulate. And so usually in a year or two, as they, before they approach retirement, they begin doing it, you know, committing really extravagant favors, highly visible favors for the industry that they regulate. As it happens, those regulators are the people who chair the departments and who hire new people and who set the example for their underlings. And actually the entire agency becomes subsumed in that process and they start, and then sometimes you have an administration like, you know, the chief lobbyist, the most notorious lobbyist in the history of the telecoms industry was Ajit Pai.
– He spent his entire life, career, vowing to destroy the FCC. And it was illegitimate agency. And he’s the one who is appointed to run the FCC. So, you know, when that happens, then all of the people work on it trying to do the right thing, get weeded out. And you’re left with just an agency that is wormwood and bile, using a biblical expression, it’s corrupt to the core. And the only way, you know, I mean, what we say is that the way that you get rid of cockroaches is with the sunlight.
So a lot of what we do is just exposing, you know, with free information laws, with discovery rules, with the kind of thing that we were doing here exposing to the public what’s happening in the dark corridors of that agency and embarrassing people and then ultimately winning laws. That’s the only thing you’d, the judges in this country and really everywhere will not give us victory as in a vacuum. We have to lay the public groundwork. We have to show the judge that the public is out there and they want reform, that there are people like you who have been injured and we need to come in with those stories, those very powerful parables about how democracy is failing. And you know, it’s being held up to ridicule. People are being harmed in terrible ways. And we, you need a grassroots movement to continually promote those forays. And that’s why, you know, what you do.
It’s all important Daf, ’cause you spend a lot of time on lawsuit. You also spend your time going town to town, village to village, school to schools spending, talking three, four, five, six, seven times a day, speaking to different groups around the country and educating them about this issue, helping families who have injured children. And I know all of the, I know a little fraction of the many, many people who have come to me and said, “Thank God for Dafna Tachover. You know, my children were miserable, they were dying and she gave us hope and she told us how to set them alive and she also gave us ultimate a hope, that we can all be saved as urged.” So, you know, all of those things are important. And we can’t, if you hadn’t laid all that groundwork, Daf, we could not have gone into this court. And gotten the kind of favorable hearing. You know, I dunno if we’ll got a favorable ruling as Scott says, we had a very favorable hearing. And that’s because of the groundwork you laid.
– Thanks so much Robert. But I think it’s really, and that’s what we’ve seen all around the country. I think there’s so many people in groups that have been doing tremendous work. And I think the judges listen, you know, when you listen, when I listened to judge Milad yesterday, talking to the FCC attorney and attacking her on the fact that, you know, the reality changed since 1996. I do think that I heard basically voices of a mother speaking through her. That’s what I felt when I heard her.
And I think for many of us, hearing her and understanding the issues so deeply and taking on the exactly the right point and, how come this guidelines that’s supposed to protect from this numerous sources, from, you know, cumulative and chronic exposure, I think she got it. And I think what I heard yesterday is a court that did hear the public in one way or another. And I do wanna believe that the court is ready to make a decision in our favor. And so for me, that was very, very encouraging hearing. And, you know, I do acknowledge that, you know, as you said, we don’t know that we’re going to get a favorable decision, but, you know, before I went to law school, it was probably to before I went to law school, I watched the movie “Philadelphia.”
And I remember, you know, there was Tom Hanks. Yeah, Tom Hanks was asked what he loved most about the law. And his answer was that, and I remember it because I put it on all my law notebooks. It was it’s that every now and again, not often, but occasionally you get to be part of justice being done. And that is, and he said that that’s really it’s quite his thrill when that happens. And I don’t like the law personally. And I think it fails people in justice and it does not really protect people. But I think that yesterday, I thought about this quote, while we are not at the end of this case. And it is isn’t over, it’s not over till it’s over. I think the hearing yesterday did leave me and many others with a sense that finally some justice was done. And so I think I speak for everyone here is that we all cautiously optimistic.
– Thank you Dafna. Thank you, Scott.
– Thank you so much, everyone.
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