Thursday, February 11, 2021

On Jan. 25, 2021, the U.S. Court of Appeals for the D.C. Circuit heard oral argument on the Federal Communication Commission’s (FCC’s) 2020 decision on radiofrequency emission limits (RFE) in which the FCC made a number of procedural changes to its rules but essentially left the RFE limits adopted in 1996 unchanged. See the Jan. 23, 2020 blog entry “Old Limits and New Procedures for FCC RF Exposure Rules” for detailed discussion of the FCC decision.

Press reports indicate that the FCC position was not well received by the Court of Appeals. Strikingly, one of the judges reportedly stated during oral argument that he was inclined to rule against the FCC because the agency’s reliance on U.S. health and safety agencies’ judgments was not well substantiated. The FCC does have an opportunity to add to the record of the case to try to bolster its position.

If the FCC decision is reversed, it could result in an extended period of uncertainty for domestic RFE standards, which would likely raise substantial issues and problems for both manufacturers of wireless radio equipment and network operators. Generally, demonstration of compliance with the FCC’s RFE rules is a safe harbor for equipment manufacturers and system operators and is intended to reassure the public of the safety of RF devices such as smartphones.

The FCC took more than six years to reach its decision to not change the 1996 limits. If the Court of Appeals reverses the FCC and that decision stands (the FCC could request further review in the courts), a multi-year period with U.S. RFE limits no longer deemed valid or appropriate could prove highly disruptive to the wireless industry ecosystem and be unsettling for consumers.

Stay tuned for developments in this case. We will follow-up when the court issues its decision.

© 2020 Keller and Heckman LLPNational Law Review, Volume XI, Number 42

ABOUT THIS AUTHOR

Michael T. N. Fitch Senior Counsel

Michael Fitch has over 40 years of experience in wireless, international, infrastructure and other telecommunications regulatory areas.  Mr. Fitch advises clients on a wide range of issues in these areas.

Mr. Fitch began his career at the Federal Communications Commission, where he advanced from staff attorney to Bureau Chief and Senior Legal and International Advisor to the Chairman. He also served as a Presidential Exchange Executive from the FCC to the Westinghouse Electric Corporation in Pittsburgh for one year. 

https://www.natlawreview.com/article/court-may-reverse-fcc-s-radiofrequency-emission-limits-decision

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https://www.gsma.com/aboutus/

GSMA Europe: Adopting International RF-EMF Exposure Guidelines: Benefits for 5G Network Deployment in Russia

Extract: However, two hurdles could hinder 5G deployment: the government approval process and rules for the placement and operation of transmitting radio facilities combined with restrictive exposure limits for radio frequency electromagnetic fields (RF-EMFs).

Both are legacies from the former Soviet Union and differ substantially from international guidelines and technical standards. In particular, the RF-EMF limits are significantly more restrictive yet in the view of international experts do not provide additional health protection.

Moreover, operating costs to deploy 5G under current conditions would be 10-times higher than if the updated international safety guidelines were adopted. Telecom operators also would need to install between three- to five-times more base stations, according to the study.

In March 2020, the International Commission on Non-Ionizing Radiation Protection (ICNIRP) updated its international safety guidelines for all frequencies used for mobile services. The guidelines, which took into consideration 20 additional of health research, found no established health risks to anyone, including children, using mobile phones or living near base stations.

Source: https://www.gsma.com/gsmaeurope/resources/emf_russia_report/

Background – Our article of 2018:

5G – Harmonization of Electromagnetic Fields (EMF) Standards Worldwide

https://www.emfsa.co.za/news/5g-harmonization-of-electromagnetic-fields-emf-standards-w

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FCC ET Docket No. 19-226, submitted electronically to https://www.fcc.gov/ecfs/

https://www.ewg.org/testimony-official-correspondence/ewg-comments-fcc-human-exposure-radiofrequency-electromagnetic

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https://www.saferemr.com/2020/02/will-scientific-american-clear-up.html

In September 2019, Scientific American, the oldest, continuously published monthly magazine in the U.S., published an opinion piece on its website entitled, “5G Is Coming: How Worried Should We Be about the Health Risks? So far, at least, there’s little evidence of danger.”

The piece was written by Kenneth Foster, an emeritus professor of bioengineering at the University of Pennsylvania. Foster is a member of a committee that sets exposure limits for wireless radiation and consults for industry and government. His article discussed the controversy about the rollout of 5G based upon widespread concerns about the adverse impact of this technology on our health. Foster argued that exposure to radio frequency radiation (RFR) from 5G will be similar to, or lower than, current levels because of the deployment of many “small cell” antennas. Hence, 5G exposure will comply with current RFR exposure limits that protect against “excessive heating of tissue.”

Although Foster admitted that research on the effects of long-term exposure to 5G millimeter waves was lacking, he restated the FDA’s position that “[t]he available scientific evidence to date does not support adverse health effects in humans due to exposures at or under the current limits.” Thus, “the request to ‘stop the distribution of 5G products appears too drastic a measure. We first need to see how this new technology will be applied and how the scientific evidence will evolve.’”

In October, Scientific American published an opinion piece which I wrote entitled, “We Have No Reason to Believe 5G Is Safe:The technology is coming, but contrary to what some people say, there could be health risks,” that rebutted Foster’s article. My piece is reprinted on my Electromagnetic Radiation Safety website.

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• Full Title: Proposed Changes in the Commission’s Rules Regarding Human Exposure to Radiofrequency Electromagnetic Fields; Reassessment of Federal Communications Commission Radiofrequency Exposure Limits and Policies
• Document Type(s): Report and Order, Notice of Proposed Rulemaking, Memorandum Opinion and Order
• Bureau(s): Engineering & Technology

Description:
The Commission has accordingly promulgated rules that set limits for RF exposure and, through the years, has created a framework to ensure compliance with these limits

• DA/FCC #: FCC-19-126
• Docket/RM: 19-226
• Report and Order: FCC-19-126A1

https://www.fcc.gov/document/fcc-maintains-current-rf-exposure-safety-standards

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Emma Fletcher-Frazer, News Editor

November 21, 2019

Thirteen. That’s the number of years that Physical Plant employees have worked on the roof of Maxey Hall — without suitable safety training — while cell antennas have occupied the same area, exposing workers to varying levels of radio frequency radiation during the completion of projects and regular maintenance. Earlier this month, the Washington State Department of Labor and Industries cited Whitman College for failure to provide appropriate safety training and equipment for radio frequency radiation.

Excerpt:

In June 2019, worry over RF radiation on Maxey arose once again at Whitman when AT&T hired Waterford Consultants LLC to evaluate their antenna installation on the roof of Maxey Hall, based on responses to industry conditions.

Waterford recommended an assessment that included both the AT&T towers as well as the T-Mobile towers, and Park hired Waterford to do an assessment specifically for the college on all cell towers on the roof.

The report that followed found that at the penthouse level of the rooftop — a 12-foot raised section on the main level of the roof — T-Mobile’s RF radiation was at 100-500 percent maximum permissible exposure (MPE), and AT&T’s levels were 500-5000 percent MPE, which means the levels would be 0-5 and 5-50 times over the public exposure limit, respectively.

The maximum permissible exposure limit is the most RF radiation that people can be exposed to under Federal Communications Commission guidelines, in this case, for the general public. Physical Plant workers fall under the general public limit rather than the occupational limit because they have not been trained for RF radiation. The public limit is ten times lower than the occupational limit. The occupational limit is significantly lower than the level at which any harm might occur to people from RF radiation.

The RF radiation levels on the main level of the rooftop, where Physical Plant Maintenance mostly works, were generally 100-500 percent MPE, except for small parts in front of the T-Mobile cell towers, which were 500-5000 percent MPE. This means that the RF levels on the main rooftop would mostly be 0-5 times over the public exposure limit.

The report was calculated using a computer-generated model, and not from readings from the cell towers. It was also generated from the worst-case predictive modeling. The report called for safety signs and barriers, site inspections, RF online safety training and updating Whitman College’s operations safety plan to include RF emissions safety guidelines as remediation.

Whitman College cited by Washington State Department of Labor & Industries

In August 2019, the Washington State Department of Labor & Industries (L&I) received an anonymous complaint over concerns about the levels of RF radiation on the Maxey roof.

According to Miller, EHS hired a specialized consultant, who is an electrical engineer, to work to develop training procedures directly after the college was informed of the L&I complaint.

An L&I inspector recently traveled to Whitman to investigate the complaint. The inspector conducted an inspection of the roof in August, 2019, and then visited with employees during October 2019. In mid-November 2019, L&I gave Whitman College a general citation in a verbal report. A general citation is the lowest level of citation and does not impose a fine. L&I requires that the employer fix the problems within 30 days of written notice of the citation. The college should receive written notice within three to four weeks of the verbal report.

The citation consisted of three problems. The issues included that the college did not identify the specific component of RF radiation risk in the college’s Accident Prevention Program, that the staff did not have adequate training for RF radiation and that the college lacked an RF monitor.

Whitman College Chief Financial Officer Peter Harvey attributes the problems to a lack of understanding about the danger of the cell towers.

“[We] didn’t realize the risk,” Harvey said. “There’s so many things out there that could have risks and I guess that responsibility goes on me as much as anybody that I agreed to put antennas up there.”

Harvey said that the original reason for leasing the space to the cell companies was concern over cell service for the community, especially in the case of emergencies, such as when people have to call 911.

Harvey added, “That’s not an excuse. We should have [realized the risk]. I own that.”

The college is currently working with a consultant to resolve the cited problems, within 30 to 45 days from the verbal report. The moratorium on access to the roof is still in effect. However, when access to the roof is necessary, cell phone companies are able to turn off the power, so that employees can work safely on the roof. This process can take up to 72 hours.

Looking towards the future, Coleman says that his goal is to understand what has happened.

“I just want to get to the bottom of what we were exposed to: if we could have any ill effects from it in the future, if it harmed our health in any way,” Coleman said. “That’s the main thing that I’m after.”

Harvey is currently in communication with the cell companies about ending the leases.

Donahue believes the cell towers should be removed, considering the distress they have caused Physical Plant workers.

“We just want to be heard, and we want to be listened to,” Donahue said.

To read the full article please see:

Exposure to radio frequency radiation on Maxey Hall roof concerns Physical Plant workers; Whitman College cited by Washington State Department of Labor & Industries

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Abstract

This editorial addresses the effects of toxic stimuli combinations on determination of safe Exposure Limits. Examination of thousands of Medline abstracts showed typically that combinations of toxic stimuli can produce damage even when the exposure level of each member of the combination is less than the lowest exposure level of the member that produced damage when tested in isolation. The synergy of the toxic stimuli in combination means less of each component stimulus is required to cause damage compared to exposure levels when tested in isolation. This Editorial concludes there is no reason to believe today that the Exposure Limits on potentially toxic stimuli that have been set by the regulatory agencies are fully protective against serious adverse health effects in all real life exposure scenarios. The conclusion is applicable to essentially all potential contributing factors to disease amenable to Exposure Limits, including not only chemicals but other types of exposures such as radiofrequency radiation (RFR).

https://www.sciencedirect.com/science/article/pii/S221475001830622X?via%3Dihub

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