Subject: An important law suit (against FCC) is filed......
Date: Sun, 31 May 1998 110039 -0500 (CDT)
From: "Roy L. Beavers" <rbeavers@llion.org>
To: emfguru <rbeavers@llion.org>
--------------------------------------------------
Hi everybody:
This message forwards a summary of an important (law suit) brief that
has been filed in Federal Circuit Court in the State of Washington.....
It seeks to compel the U.S. Federal Communications Commission (FCC) to
observe appropriate public health considerations, based upon the best
information now available, in the promulgation and administration of rules
enforced by the FCC in its role as the "enforcer" of telecommunications
antenna (and other equipment) installation standards.
In a recent message, I stated that I "had no quarrel" with those who were
actively seeking to engage the government in cases such as this. I now
wish to revise that statement -- and strengthen it -- I believe such
actions (at federal, state or local level) are essential!!! The brief
that has just been filed in Washington State (summary below) is a good
example of what can be done by those who want 'action' and not just
'words' ... on the EMF issue.....
I see absolutely NO justification for a regulatory agency (such as
the FCC) to exist ... if that agency is not going to apply the _latest_
information available (as, I submit, it is expected to do 'under the
law') in the formulation, promulgation and enforcement of its regulations.
That is the "big issue" I see in this case.....
Why have an FCC if they are not going to enforce rules that are based upon
the best and latest information available to protect public health and
safety??? The pleadings allege that they (FCC) are even ignoring the
advice of some other government regulatory agencies!!! (Indeed, let
the record show that the _record_ of the FCC in this matter has been to
bury its head in the sand, ignoring ALL information about possible EMF
hazards, and claiming that it has no responsibility to find out about'Rd
This should prove to be an important case to establish how _lax_
("protective of industry") a government agency can be in the
performance of its duty ... when promulgating and enforcing
regulations that are supposed to protect the PUBLIC -- not industry.....
Thanks for sending this to us, Libby....
Cheerio......
Roy Beavers (EMFguru)
rbeavers@llion.org..............http://www.feb.se/EMF-L/EMF-L.html
................................It is better to light a single candle ...
than to curse the darkness...............................................
Of Parties Concerned About the Federal Communications
Commissions Radio Frequency Health & Safety Rules
P.O. Box 7577, Olympia, Washington, 98507-7577
Phone 415-892-1863 Fax 415-892-3108
C
ontact: Libby Kelley
415-892-1863
U.S. Circuit Court Appeal Challenging FCC Telecommunications 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. Court of Appeals, 2nd Circuit in New York City.
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 Federal Communications Commission. Oral
arguments are scheduled for mid July. A judicial decision will be
rendered by fall, 1998.
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:
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 protect public health, safety and
welfare. Specific arguments include:
FCC granted categorical exclusions based solely on power and vertical
clearances. For example, towers above 34 feet in height or rooftop
antennas can be located in close proximity to nearby buildings or
hillside residences. Another example is, there are no requirements for
routine RF evaluations of co-located 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.
FCC demonstrated a lack of reasoned decision-making by arbitrarily failing
to follow the expert health and safety advice it purports to rely upon.
Recommendations from EPA, FDA OSHA and NIOSH were ignored or dismissed.
For example, FCC adopted a Maximum Permissible Exposure (MPE) for
workers which is five-fold higher than the MPE for the general public,
over the objections of OSHA, NIOSH and FDA. FCC ignored FDAs call for
action on interference to medical devices. FCC arbitrarily treated
non-thermal effects on biological systems of radio frequency radiation
(RFR) as scientifically unproven and therefore inconsequential. 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.
FCC did not order an environmental assessment (EA) under the 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. The legal threshold for excessive exposure is just
below thermal levels. FCC and wireless carriers are not required to
conduct an EA, despite numerous scientific studies which indicate that
there are biological changes at non-thermal levels. An example of
this phenomena is RF interference with hearing aids (microwave hearing).
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. Congress intended that states
regulate the operation of personal wireless services facilities so long
as providers were not barred entry or discriminated against. FCC
nterpreted this to mean states were not permitted to conduct its own
compliance monitoring.
The Statute as written is unconstitutional as it violates the 10th
Amendment. The statute as applied violates the 5th and 1st Amendments.
REMEDIES SOUGHT FROM THE COURT:
Overturn the FCC statutory interpretation on preemption under Sections
332 © (7) (b) (ii) and (iv) and declare those sections of law
unconstitutional, or apply the Adminstrative Prodecures Act at 5
U.S.C.S706 (2) (B) and (C). These provisions of the Telecommunications
Act of 1996 infringe on historic non-federal prerogatives in matters of
public health, safety and welfare. Reverse the FCC, under 5 U.S.C. S. 706
(2) (A), where there is no rational explanation for an action, such as
increasing the MPE for workers wrists, hands, ankles and feet and, at
Section 2.1093 (d) (1) of the FCC rules, which increase the MPE from
8W/kg in the predecessor IEEE based regulations, to 20W/kg in the
current NCRP based rules. We ask the court to restore the former rule.
Order FCC to prepare an Environmental Assessment in accordance with the
National Environmental Protection Act.
Order 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.
Involve the expert federal agencies in the proceedings and make them more
fully, if not finally, accountable for post-remand outcomes.
Set aside the current rules and remand the rulemaking to the FCC with
the instructions to remedy the legal shortcomings. 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:
Section 1.1307(e), which implements the challenged preemption of
non-federal consideration of the environmental effects of RFR; and
Section 2,1093 (d) (1), which increases occupational/controlled exposures
to extremities.
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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