Subject: Summary of Brief on FCC case (fwd)
Date: Thu, 4 Jun 1998 055540 -0500 (CDT)
From: "Roy L. Beavers" <rbeavers@llion.org>
To: emfguru@hotmail.com
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---------- Forwarded message ----------
Date: Wed, 03 Jun 1998 22:40:40 -0700
From: dingel@concentric.net
To: Rbeavers@llion.org
Subject: Summary of Brief
Following provides a revised summary of the brief recently filed in the
FCC case:
Ad Hoc Association
Of Parties Concerned About the Federal Communications
Commission’s Radio Frequency Health & Safety Rule
P.O. Box 7577, Olympia, Washington, 98507-7577
Phone 415-892-1863/ Fax 415-892-3108
For release: May 29, 1998
Contact: Libby Kelley
415-892-1863
Ad Hoc Association Appeal Challenges FCC RF Radiation Rules
Background: On May 22, 1998, the Ad Hoc Association (AHA), a public
interest organization representing concerned citizens, and the
Communications Workers of America (CWA), a national labor union, filed a
joint brief in the U.S. Circuit Court of Appeals, 2nd Circuit in New York
City. The brief challenges as arbitrary and unconstitutional the Federal
Communications Commission (FCC) rules claiming to protect the public
against the potential dangers of radio frequency radiation (RFR). The
Cellular Telephone Task Force (CTTF), representing electro-sensitive
persons reporting RF injury, and other parties, filed a brief at the same
time. These petitions have been consolidated by the court to facilitate
its review of orders of the FCC. Oral arguments are scheduled for July,
1998. A judicial decision is expected in the fall. The Federal
Communications Commission is the formal respondent. Filing as intervenors
are the Cellular Telecommunications Industry Association (CTIA), the
National Association of Broadcasters (NAB). The Association for Maximum
Service Television, Inc. (MAST), Electromagnetic Energy Association
(EEA), and AT&T Wireless Services, Inc.
Highlights of the appeal:
AHA and CWA petitioners charge that the FCC and the federal health and
safety agencies should be held accountable for failure to issue federal
rules for wireless phone carriers, which fully protect public health,
safety and welfare. Some of the specific arguments include:
1.The FCC granted categorical exclusions based solely on power and vertical
clearances. For example, towers above 10 meters (33 feet) in height or
rooftop antennas can be located in close proximity to nearby buildings or
hillside residences. Another example is that there are no requirements for
routine RF evaluations of collocated transmitters. These exclusions are
over-simplified and effectively shift the burden from the wireless carrier
applicant to the public or the FCC to demonstrate non-compliance.
2. The FCC demonstrated a lack of reasoned decision-making by arbitrarily
failing to follow the expert health and safety advice it purports to rely
upon. Some recommendations from federal health and safety agencies,
including EPA, FDA OSHA and NIOSH, were ignored or dismissed. For example,
the FCC adopted a Maximum Permissible Exposure (MPE) for workers which is
five-fold higher than the MPE for the general public, in spite of concerns
expressed by OSHA, NIOSH and FDA. The MPE for the general public fails to
account rationally for exposure factors other than time. The FCC ignored
FDA’s call for action on interference to medical devices. The FCC
arbitrarily treated non-thermal effects on biological systems of radio
frequency radiation (RFR) as scientifically unproven and therefore
inconsequential. The FCC failed to evaluate new information on
possible health effects of RF radiation and did not take the advice of
NIOSH and EPA for exerting greater caution around modulated RF signals.
3. The FCC did not order an environmental assessment (EA) under the
National Environmental Protection Act (NEPA). As a result, the general
public must seek remedial action through the courts or by direct appeal to
the FCC on this as well as other provisions of the Act. The legal threshold
for excessive exposure is just below thermal levels. The FCC and wireless
carriers are not required to conduct an EA, despite numerous scientific
studies, which indicate that there are physical changes at non-thermal
levels. An example of this phenomenon is microwave hearing, a physical
condition marked by ringing in the ears, a medically recognized condition
caused by RF signals.
4.The FCC exceeded its statutory authority by misinterpreting the
Telecommunications Act of 1996 and banning non-federal regulation of RFR.
The term "environmental effects" referred to the required EA at time of FCC
licensure application to ensure the provider met the federal RF emission
guidelines. It did not mean states’ rights to regulate RFR health and
safety were preempted. It is our position that Congress intended that
states regulate the operation of personal wireless services facilities so
long as providers were not barred entry or discriminated against. The FCC
interpreted this to mean states were not permitted to conduct their own
compliance monitoring.
5. The Statute as written is unconstitutional as it violates the 10th
Amendment by preempting state sovereignty in regulating and adopting health
and safety rules. The Statute as applied violates the 5th and 1st
Amendments by interfering with due process and citizen participation.
Remedies sought from the court:
o Overturn the FCC statutory interpretation on preemption of
non-federal (i.e., state and local) government regulation of wireless
services as it interferes with state prerogatives in matters of public
health, safety and welfare.
o
Eliminate the regulatory standard, which increases MPE for
workers wrists, hands, ankles and increases MPE from 8W/kg. Restore the
former rule.
o Order the FCC to prepare an Environmental Assessment in accordance
with the National Environmental Protection Act.
o Order the FCC to demonstrate that adequate and affordable
databases exist for carriers to use in complying with RF emission
guidelines and for citizens to have access to these databases in monitoring
compliance.
o Involve the federal health and safety agencies in the proceedings
and make them more fully, if not finally, accountable for post-remand
outcomes.
o Set aside the current rules and remand the rulemaking to the FCC
with the instructions to remedy the legal shortcomings. The FCC would have
one year following the court ruling to publish revised rules. However, as
the current rules are better than the ones they replace, reinstate the
current rules, with two exceptions which are being challenged in this appeal:
1.The preemption of non-federal consideration of the
environmental effects of RFR and;
2.The increases in worker exposures.
*For information about the Cellular Telephone Task Force
petition, please
contact (718) 434-4499.
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Archive provided courtesy of WaveGuide, http://www.wave-guide.org
Reprinted with permission of Roy Beavers, http://www.feb.se/EMF-L/EMF-L.html