*Pages 1--6 from Microsoft Word - 30260* Federal Communications Commission FCC 03- 191 Before the Federal Communications Commission Washington, D. C. 20554 In the matter of EMR Network Petition for Inquiry To Consider Amendment of Parts 1 and 2 Regarding Environmental Effects of Radiofrequency Radiation ) ) ) ) ) ) ORDER Adopted: July 28, 2003 Released: August 14, 2003 By the Commission: Commissioner Copps issuing a statement. INTRODUCTION 1. By this action, we deny the Application for Review 1 filed by the EMR Network (“ EMR”), contesting the decision of the Chief, Office of Engineering and Technology (“ OET”) to dismiss EMR’s Petition for Inquiry. 2 EMR had requested that we initiate a proceeding to gather information and opinion about the need to revise our regulations for radiofrequency (“ RF”) radiation and use the information so obtained to revisit our current guidelines for evaluating human exposure to RF emissions from transmitters under the jurisdiction of the Commission. We find that OET was correct in dismissing the petition, having determined that this Commission is not the most appropriate forum to initiate such an inquiry or proceeding concerning the environmental effects of RF radiation at this time. BACKGROUND 2. Pursuant to the National Environmental Policy Act of 1969 (NEPA) 3 , the Commission has established guidelines for human exposure to radiofrequency (“ RF”) radiation. 4 These guidelines, first established in 1985 5 , regulate the amount of RF radiation to which humans may be exposed by various transmitters regulated by the FCC. The guidelines and methods for evaluating the environmental effects of RF have been revised as scientific knowledge in the area has advanced and standards- setting bodies upon which the Commission relies in setting its exposure guidelines have revised their maximum acceptable exposure criteria. The current guidelines were finalized in 1997, based on the recommendations and advice of federal agencies and groups with expertise in health- related areas and in 1 We consider herein both the Application for Review filed by EMR Network and its Supplement to that application. 2 Letter from Bruce A. Franca to James R. Hobson, December 11, 2001 (“ Dismissal letter”). 3 42 U. S. C. §§ 4321 et seq. (1976). 4 47 C. F. R. §§ 1. 1307( b), 1.1310, 2.1091, and 2.1093. 5 Report and Order in GEN Docket 79- 144 (RF Report and Order I), 100 F. C. C. 2d 543 (1985); Memorandum Opinion and Order in GEN Docket 79- 144, FCC 85- 467, released August 22, 1985, 58 RR 2d 1128 (1985). 1 Federal Communications Commission FCC 03- 191 2 standards setting. 6 More recently, the Commission updated its procedures for measuring RF exposure from mobile and portable devices. 7 These procedures are based on the work and recommendations of an expert group of the Institute of Electrical and Electronics Engineers (IEEE). 8 3. In its petition for inquiry, EMR requested that the Commission initiate a proceeding to gather information and opinion about the need to revise our regulations regarding human exposure to RF radiation. It further requested that the Commission use the information obtained in such an inquiry to revisit the guidelines currently established for evaluating human exposure to RF emissions from FCC-regulated transmitters. EMR observed that the Commission’s current RF limits are several years old, and asserted that there are a number of studies which purport to demonstrate a health hazard from RF radiation that is not contemplated in our rules. In particular, EMR argued that non- thermal effects and the effects of long- term low- level exposure were not taken into consideration in setting the Commission’s RF exposure guidelines. EMR supported its request by reference to a letter written by members of the Radiofrequency Interagency Working Group (IWG), an ad hoc group of scientific professionals from various federal agencies that have jurisdiction over or interest in various radiofrequency issues, to the Risk Assessment Working Group of the IEEE. 9 In that letter, at the request of the IEEE, the members of the IWG identified issues which they suggested should be addressed in considering revisions to IEEE’s RF exposure guidelines. 4. OET dismissed EMR’s petition, noting that in developing rules to implement health and safety related concerns, this Commission has historically relied on agencies with primary expertise and responsibility for ensuring health and safety, such as the Environmental Protection Agency (“ EPA”) and the Food and Drug Administration (FDA). It observed that the current exposure guidelines are derived from criteria established by the National Council on Radiation Protection and Measurements (NCRP) and the IEEE, as further informed by the advice of the EPA, FDA, and other health and safety agencies. It noted that the adequacy of the Commission’s RF exposure guidelines had been recently upheld, in the face of arguments similar to those advanced here by EMR, by the Second Circuit Court of Appeals. 10 OET concluded that a determination of whether the RF safety limits should be revised is, at least initially, more properly the jurisdiction of such agencies, and accordingly dismissed the petition. DISCUSSION 5. EMR argues that OET failed to state the grounds for its action or to explain the conflicts of that action with law, precedent, and policy. EMR principally argues that the Commission cannot defer the responsibility for its rules to others and that the Commission has initiated action with regard to establishing its RF exposure guidelines in the past, contrary to OET’s assertion in its dismissal letter that the Commission relies on other agencies and should not now take the initiative in this area. EMR contends that while the Commission states its reliance on other expert agencies in determining appropriate RF exposure guidelines, OET ignored a letter from the staffs of those agencies in rendering its decision. 11 6 Report and Order in ET Docket No. 93- 62 (RF Report and Order II), 11 FCC Rcd 15123 (1996); Second Memorandum Opinion and Order and Notice of Proposed Rule Making in WT Docket No. 97- 192 and ET Docket No. 93- 62, 12 FCC Rcd 13494 (1997). 7 Public Notice, Office of Engineering and Technology Announces Release of Revised Supplement C to OET Bulletin 65, DA 01- 1557, June 29, 2001; Public Notice, Office of Engineering and Technology Announces a Transition Period for the Phantom Requirements of Supplement C to OET Bulletin 65, DA 02- 1438, June 19, 2002. 8 The IEEE Standards Coordinating Committee 34, Subcommittee 2 is convened specifically to develop procedures for evaluating the Specific Absorption Rate (“ SAR”) of RF emissions from wireless handsets. 9 Letter from W. Gregory Lotz, Ph. D. to Mr. Richard Tell, June 17, 1999 (Lotz letter). 10 See Cellular Phone Task Force v. FCC, 205 F. 3d 82 (2d Cir., 2000). 11 EMR refers to the Lotz letter, supra. 2 Federal Communications Commission FCC 03- 191 3 It questions whether the Commission should rely on the IEEE, which it refers to as a private, commercial body dominated by private commercial interests, for developing RF exposure standards, contending that the other agencies upon which the Commission would rely for guidance in this area variously lack the resources or the interest to participate or to “push back” on the work or recommendations of the IEEE. In a Supplement to its Application for Review, EMR cites the lack of response from other health and safety agencies to which it sent inquiries regarding this matter. 12 EMR distills its argument into a claim that current RF bioeffects research is privately orchestrated, and thus not credible. It concludes by citing the “Recommendations for Executive Action” of a May 2001 Report by the Government Accounting Office 13 , in which GAO recommends that the FCC Chairman direct OET to issue revised guidance on SAR testing procedures, and to consult with FDA on the method of incorporating measurement uncertainty in determining compliance with RF safety limits, as further evidence of a need to conduct such an inquiry. 6. We find that, contrary to EMR’s assertions, the OET action does not conflict with pertinent law or regulation, and we hereby affirm its decision to dismiss EMR’s Petition for Inquiry. OET’s fundamental premise – our reliance on the expertise of health and safety agencies in this area - is our sound guiding principle, and EMR has failed to advance any argument that persuades us otherwise. 14 7. EMR relies primarily on the Lotz letter to support its contention that there are areas of insufficiently explored concern regarding the health effects of human exposure to RF radiation. We agree that in this letter, knowledgeable individuals appropriately identified issues of potential interest in setting RF exposure guidelines. These ideas had been solicited by another working group of experts convened to consider just such matters, the IEEE Risk Assessment Working Group. It is telling, however, that the letter specifically noted that it did not reflect the views of the respective agencies by which the individual IWG members are employed. 15 The IEEE Risk Assessment Working Group has taken these concerns under advisement, but has yet to determine what, if any, responsive action is appropriate. Moreover, not one of the agencies represented by the members of the IWG, whose views and formal actions are informed in part by these individuals and also by other individuals and sources, has elected to initiate any action which EMR can point to or of which we are otherwise aware in response to these issues. 8. EMR argues that by directing EMR’s efforts to other agencies, the Commission seeks to be relieved of a responsibility that it cannot legally avoid. In making this argument, EMR suffers a 12 With its Supplement, EMR submits letters from a staff member of the Environmental Protection Agency (Letter from Norbert Hankin to Ms. Janet Newton, July 16, 2002, “EPA letter”), the Director of the National Institute of Environmental Health Sciences at the National Institute of Health (Letter from Kenneth Olden, Ph. D to Ms. Janet Newton, February 21, 2002, “NIH letter”), the Acting Director of the Centers for Disease Control and Prevention at the National Institute for Occupational Safety and Health (Letter from Kathleen M. Rest, Ph. D, M. P. A. to Ms. Janet Newton, April 2, 2002, “NIOSH letter”), and the Assistant Secretary for Occupational Safety and Health at the U. S. Department of Labor (Letter from John L. Henshaw to Ms. Janet Newton, May 10, 2002, “OSHA Letter”). These letters were sent to EMR in response to its solicitation from these agencies of support for an inquiry into current RF health- related research and the adequacy of the FCC’s current RF exposure guidelines. EMR apparently did not receive responses to similar letters from the Food and Drug Administration or the National Telecommunications Information Agency. 13 GAO Report to Congressional Requesters, Research and Regulatory Efforts on Mobile Phone Health Issues, GAO- 01- 545, May, 2001, at 31- 32. 14 This is not to say that this Commission could not or would not initiate action in the face of compelling evidence of a need for such action. But, where, as here, other more expert agencies have the same information as we have and do not see reason for action, as we further discuss below, it would be difficult for us to ignore the tacit conclusions of those agencies, absent a compelling case to do so. 15 “The views expressed in this correspondence are those of the members of the Radiofrequency Interagency Work Group and do not represent the official policy of position of the respective agencies.” Lotz letter, supra, at para. 2. 3 Federal Communications Commission FCC 03- 191 4 critical misapprehension. As outlined above, this Commission has carefully and assiduously developed RF guidelines to protect the public according to the best science available, as interpreted by the agencies most expert in the pertinent fields. As aptly recognized by OET in reaching its determination to dismiss EMR’s petition, we will continue to rely on just such expertise in evaluating the continued propriety of our RF guidelines. When there is an appropriate indication by such agencies, or other expert sources, whether self- initiated or in response to outside petition or activities, we could consider the need for an investigative effort in support of possible exposure rules revisions. We reiterate here OET’s recognition that our RF exposure guidelines were recently upheld by the Court of Appeals. 16 In that decision, the Court specifically recognized that the “the FCC satisfied itself that there was a mechanism in place for accommodating changes in scientific knowledge…. [including scientific committees and ongoing research] … ‘and that it would ‘consider amending [its] rules at any appropriate time if these groups conclude that such action is desirable. ’” 17 This is precisely the posture that we continue to maintain, as illustrated by OET’s decision. 18 9. EMR attempts to undercut our reliance on this position by relating previous instances in which, it contends, the Commission acted on its RF exposure guidelines on its own initiative. Each of those instances, however, is inapposite to the present circumstances. EMR points out that the Commission’s initial proceeding to establish RF exposure limits was commenced without input or specific encouragement from other agencies. At that time, however, the Commission, with no rules regulating human RF exposure, was compelled to undertake a rulemaking proceeding in order to comply with the provisions of the NEPA. When the American National Standards Institute (ANSI) and IEEE established guidelines in this area during the course of that proceeding, the Commission incorporated them into its proceeding, and they formed the basis for the rules eventually adopted. 19 In its more recent revision of RF exposure guidelines, also cited by EMR, the Commission significantly and explicitly relied on expert advice in forming the basis for its initiation of that action 20 and in reaching its conclusions regarding appropriate exposure levels. 21 EMR asserts that, in its reconsideration decision, the Commission in fact “dared to choose between two sets of recommended standards and between and among the conflicting view of other federal agencies themselves.” 22 The point of this assertion seems to imply that we cannot now disclaim the ability or responsibility to make such decisions. Neither OET’s decision nor our affirmation of that decision, however, would or should do so. OET’s conclusion not to proceed with an inquiry on the basis of EMR’s Petition, affirmed here, is not based on an unwillingness to choose among conflicting expert information and recommendation, but rather is based on the dearth of such information or recommendations. It is also illustrative of the propriety and effectiveness of our reliance on other experts to recognize that the most recent proceeding to revise our exposure rules was initiated in response to revisions in the ANSI/ IEEE standards. We acted in response to the ANSI/ IEEE revision explicitly to “reflect recent scientific studies of the biological effect of RF radiation” in order to 16 Cellular Phone Task Force v. F. C. C., 205 F. 3d 82 (2d Cir. 2000), cert. denied, 531 U. S. 1070 (2001). 17 Id., at 90, 91. 18 We note here that FCC staff continues to participate in the Federal Radiofrequency Interagency Working Group, which monitors developments related to RF biological effects, and in various IEEE committees and subgroups related to RF research, oversight, and standards setting. With this participation, among other means, the Commission stays informed of studies and other information available, as well as the activities and opinions of other agencies pertinent to this area. 19 RF Report and Order I, supra at 543. 20 RF Report and Order II, supra at 15184. 21 Id. 22 EMR Application for Review at 8. 4 Federal Communications Commission FCC 03- 191 5 “ensure that FCC- regulated facilities [would] comply with the latest safety guidelines for RF exposure.” 23 10. While EMR would question the impartiality of the IEEE itself and of the federal agencies and their personnel that participate in its committees and subgroups, the fact remains that IEEE, a nonprofit entity with members representing a variety of interests, including government, industry, and academia, is composed of leading experts in this area. There is no other comparable group of experts with which to consult or upon which to rely. Without the knowledge and views of such experts, credible guidelines and policy in this area cannot be formed. Despite EMR’s implication that the IEEE is captive of the industry, it is important to note that membership in the subject committees and subgroups is open, permitting the government and academia to participate to the full extent they desire. Neither the FCC participants nor other government participants have determined that a bias controls or adversely affects the work or deliberations of the IEEE. We note that EMR’s criticism of the IEEE is based on a journal article and emphasizes “early draft” proposals rather than final actions. 24 It is final actions, not early drafts, that are significant, and as a participant in the IEEE, we do not find this reference compelling. Moreover, IEEE is not the only source of expertise upon which this agency relies. 25 Also, while EMR decries the private funding for research in this field, research results are critically considered before they would form a basis for action. Moreover, one federal agency, the FDA, currently responsible for overseeing certain research funded by industry is apparently satisfied with that research’s objectivity, and it is not our place to second- guess their position in this regard. Additionally, the federal government, through the National Toxicology Program of the National Institute of Environmental Health Sciences, is in the early stages of a long- term study of potential health effects from mobile phones that may provide a basis for future consideration of RF exposure limits. We note that this effort has been undertaken pursuant to a recommendation of the FDA. In sum, EMR’s protestations regarding the adequacy of the IEEE or of current research to inform the fundamental decision as to whether and when to initiate a revision of the RF emission guidelines, are not sufficient to warrant an inquiry by this agency at this time. 11. While EMR correctly notes, in a related argument, that it must petition the Commission for changes in Commission’s rules, it fails to discriminate what constitutes an adequate basis for pressing such a case. Were EMR to demonstrate reliable pertinent information developed by an appropriate agency or other expert source, we would have a basis for opening a rulemaking or fact- finding proceeding. In the absence of a demonstrable show of concern, or even interest, by other expert agencies with the same (or greater) knowledge of research in this field – and its implications - as we possess, we are not inclined to generate such an inquiry on our own. Additionally, we do not have the prerogative to order other agencies to do so or to participate in an inquiry that this agency might initiate in spite of their better- informed inaction. 12. Finally, EMR, in its Supplement, points to letters it received in response to its own assertion of the inadequacy of our current rules and its solicitation of support for a Commission rule making, directed to six agencies and institutions. 26 As EMR recognizes in its Supplement, the agencies’ responses clearly demonstrate the lack of interest on their part to initiate a proceeding or inquiry at this 23 RF Report and Order II, supra at 15128. 24 EMR Application for Review at n. 23. 25 In establishing our most recent guidelines, we relied primarily on the recommendations of the NCRP and federal health and safety agencies. See, RF Report and Order II, supra. While EMR decries the withdrawal of the NCRP from this field, we note that the NCRP has recently decided to reconstitute its subcommittee that deals with RF exposure issues. The FCC is a collaborating organization of the NCRP. FCC staff also participates in international activities related to RF exposure, including those sponsored by the World Health Organization. 26 See n. 12, supra. According to its Supplement, only four of six agencies responded to EMR’s solicitation. 5 Federal Communications Commission FCC 03- 191 6 time. 27 EMR concludes from these responses that this Commission is compelled to action. We believe, however, that these responses affirm OET’s determination that other more expert agencies, which are at least as well informed at the FCC, are not inclined to action at this time, and that there is no glaring flaw in their decision making and no compelling evidence of which we are uniquely aware that suggests to us that a rule making or inquiry is warranted at this time. We note, significantly, that these letters do demonstrate that some of these agencies are continuing to monitor literature and conduct research in the area, which supports the premise upon which our own determination is based. 13. As an incidental matter, in response to EMR’s assertions regarding the recommendations for Commission action in the 2001 GAO Report, we note that the Commission has, in fact, revised testing procedures for mobile and portable devices, as indicated in paragraph 2, above, and that OET staff and FDA staff have worked together on the matter of accounting for measurement uncertainty in testing for RF exposure, as reflected in the recent revisions to the on the joint FDA/ FCC website on RF Safety (< www. fcc. gov/ oet/ rfsafety>). Each of these actions reflects the Commission’s continuing involvement with other agencies in areas related to the regulation of RF exposure. ORDERING CLAUSES 14. Accordingly, IT IS ORDERED That pursuant to Section 4( i) and 4( j) of the Communications Act of 1934, as amended (47 U. S. C. §§ 154( i), 154( j)), the Application for Review filed by EMR Network IS DENIED. FEDERAL COMMUNICATIONS COMMISSION Marlene H. Dortch Secretary 27 The EPA letter, supra, is an informal response by an individual without authority to speak for the agency, and merely reiterates information already in the record. The NIH letter, supra, indicates its intention to conduct laboratory research of the nature sought by EMR (which, we note, could form the basis for a recommendation for further inquiry or action). The NIOSH letter, supra, asserts that agency’s past and continuing review of RF radiation bioeffects literature worldwide. The OSHA letter, supra, remarks that its interest is limited to the workplace (which is included in our RF exposure guidelines), and that it has and will continue to work with other agencies and professional organizations to monitor the possible health effects from RF exposure. 6