Recent federal court decisions regarding FCC

• On August 13, 2021, the U.S. Court of Appeals for the D.C. Circuit ruled in favor of Environmental Health Trust et al. (8), as follows:
  • The Federal Communications Commission (FCC) violated federal law (the Administrative Procedures Act, or APA) by failing to provide a “reasoned explanation” for deciding that its wireless radiation exposure limits do not need updating, even though these limits have not been reviewed since 1996.
  • The Food and Drug Administration (FDA) has not provided an “articulation of the factual… bases” for its conclusions, which “represent[s] a failure by the FDA”, and therefore the FCC cannot rely upon FDA webpage FAQs on cell phone safety.
  • All other expert agencies in the federal government have been silent on the question of safety, and “silence does not even indicate whether the expert agencies… considered any of the evidence”.
  • The Court ordered FCC to “provide a reasoned explanation for its decision” and to address the impacts of RF radiation on children and the environment. FCC has not yet complied with this order.
• Additional background regarding the EH Trust decision:
  • Petitioners submitted over 11,000 pages of scientific evidence indicating health effects of wireless radiation exposure at levels below FCC’s current limits.
  • FCC is required to set exposure limits to protect public health, but it is not a health agency and relies on other expert agencies’ analyses (which have not been done).
  • FDA acknowledges that it has not made any determination about the safety of cell towers. (9,10)

• Title 47 Section 332 of the US Code (11) says local governments may not “regulate the placement” of cell towers based on environmental effects of radiofrequency emissions, which is based on the premise that the FCC complies with environmental protection law before it seeks to preempt local zoning authority.

  • However, in 2019 the U.S. Court of Appeals for the D.C. Circuit in the Keetoowah case found that FCC violated federal law (the APA) by failing to justify its assertion that “small cell” wireless facilities “pose little to no environmental risk”. (12) The court held that the FCC acted in an arbitrary and capricious manner and that FCC’s “public interest analysis did not meet the standard of reasoned decisionmaking.” Although almost three years have passed since that decision, we are not aware of FCC having provided any analysis of the environmental effects of small cell networks or of their cumulative effects.

  • Wireless carriers have asserted that “environmental effects” includes “health effects”, however this has not been tested in court. Courts have issued decisions based on “potential” health effects or “concerns” about health effects, but not on imminent or actual effects. (13) There is an open legal question about this assertion. (14)

Wireless facilities’ regulatory compliance in the County

• The County has been approving wireless transmission facilities on rooftops of multifamily residential buildings since at least 1996, as far back as its public database is available. Many of these multifamily homes provide relatively affordable housing in our high-priced County.

• Residents have brought to the attention of the County’s Transmission Facilities Coordination Group (also known as the Tower Committee) errors in many applications for wireless facilities. For example, in 2020, residents pointed out to the Committee an apparent pattern of errors relating to the underreporting of expected levels of exposure to wireless radiation. This pattern affected at least 25 sites, including nine residential buildings and two County high schools. (15) All had been favorably recommended by the Committee before the errors were discovered, requiring the Committee to seek corrections and re-consideration.

• Applicants’ own estimates often predict that their antennae on top of residential buildings will generate levels of exposure to wireless radiation in certain areas atop the building and/or over the sides that will exceed federal exposure limits for the general public, sometimes by dozens of times. (16) In one example, the maximum anticipated level of exposure in one area on the rooftop was predicted to be as high as 114 times FCC limits. (17)

• The Tower Committee does not include any resident representatives, nor are residents permitted to speak at its meetings.

• The County currently has no policy or procedure to ensure that, after installation, wireless facilities – whether in rights-of-way, on school property, on private property, or on buildings – comply with County requirements and do not exceed FCC exposure limits, even when applications anticipate exceeding those limits.