Landmark Lawsuit Filed Against FCC for Failing to Reevaluate 5G and Wireless Safety

A joint lawsuit against the Federal Communications Commission (FCC) was filed on July 30, 2020 by the Environmental Health Trust and the Children’s Health Defense for failure to protect human health and the environment by dismissing scientific evidence of harm from wireless radiation. The Petitioners are challenging the FCC’s refusal to reevaluate and update their 24-year-old radiofrequency (RF) safety guidelines for existing and new telecommunications technologies. This comes at a time when new lucrative 5G Spectrum is being auctioned and fast tracked

Updated 10/20/20

The FCC officially “resolved” the reevaluation inquiry  the petitioners state, by ignoring new scientific information that takes into consideration

  • The massive increase in the mix and intensity of radiofrequency radiation the population is exposed to in the last 20 years and will be exponentially exposed to in the coming years
  • Inadequate cell phone safety testing
  • Non-thermal harmful effects of wireless radiation
  • Pulsed and modulated radiation which are more biologically active and harmful
  • Disability from radiation sickness (microwave illness or electro sensitivity)
  • Environmental harm

With thousands of letters and peer reviewed scientific articles presented as testimony to the FCC Docket since 2013, there was hope that this critical issue would finally be addressed, and at the very least some precautionary measures would be advised along with further study of 5G effects prior to the massive 5G rollout that is occurring now. The FCC stated they will maintain their current guidelines for cell phones and cell antennas, and apply these same radiofrequency energy standards to 5G, which has not been studied for health or environmental harm, but is simply assumed safe. The petitioners for the lawsuit are stating this was done through omission and dismissal of the scientific literature. “We need to see justice through in this case.”

The Lawsuit

 The Petition against the FCC states that the failure to update telecommunications safety regulations violates elements of the Telecommunications Act of 1996 (“TCA”),2 the Administrative Procedure Act (APA), the National Environmental Policy Act (NEPA), the American’s with Disabilities Act (ADA) and the Federal Housing Administration (FHA), in addition to raising other constitutional issues.  The lawsuit argues that the FCC

  • Failed to engaged in reasoned decision-making and to base its decision on substantial evidence
  • Did not consider the evidence in the record of many individuals suffering the effects of unavoidable exposure to radiofrequency radiation.
  • Acted in an arbitrary and capricious manner

Timeline

 FCC had 45 days to file its response to the brief and the EH Trust and CHD had 21 days to file their response to FCC response, by October 6, 2020 (filed with extension Oct 19, 2020). The next stage will be a hearing in the court to present their case. The court will then give their decision.  If the outcome is positive it will be the first step in requiring the FCC to review all the evidence. (See responses below)

The Petitioners

Environmental Health Trust

The Environmental Health Trust is a non-profit organization founded by Dr. Devra Davis. The organization works on environmental health issues but focuses research and education mostly on health impacts of wireless radiation. When the FDA decision came out in December 2019 a senior advisor to EH Trust Dr. Paul Ben Ishai criticized the report which he said, “flies in the face of the massive scientific evidence that has accumulated” on health harms.

Children’s Health Defense

The mission of the non-profit organization, Children’s Health Defense, founded by Robert F Kennedy Jr,  is to protect children from chronic health conditions that have skyrocketed in the last 2 decades. Over half of children now experience one or more chronic health issues. Scientific studies show the trend is worsening. After learning of the potential impacts of wireless technology on children as well as adults, the Children’s Health Defense began a campaign to educate others and take legal action.   Robert Kennedy Jr stood up to powerful interests giving a passionate speech to a large crowd in Berlin, Germany on August 28, 2020, discussing 5G telecommunications, health impacts and democracy. He stated,  Our mission at CHD is to end toxic exposures to children. This is an exposure.”  In their Evidentiary Brief Press Conference, several speakers discussed the need for the lawsuit, including a teenager who spoke candidly and compellingly about her severe sensitivity to wireless radiation which she developed in high school.

NRDC

The NRDC, a national non-profit environmental advocacy organization, has petitioned the court to file an amicus brief in order to participate in oral arguments regarding NEPA and the adequacy of environmental review for the construction of wireless infrastructure. NRDC attorney Sharon Buccino states in the petition, “Under the challenged Order, environmental review is tied to the RF limits set by the FCC. As long as a wireless service provider certifies that the construction it proposes meets the FCC’s RF standards, no environmental analysis is required. The FCC’s arbitrary determination that the limits set in 1996 are still adequate today means that environmental review will not occur where it would otherwise if the FCC had followed the mandates of reasoned decision-making under the Administrative Procedure Act.”

The NRDC Petition further notes,

  • The FCC failed to complete an Environmental Impact Statement under NEPA before terminating its inquiry into the adequacy of its radiofrequency (RF) standards
  • The FCC’s inadequate health standards excuse wireless service providers from conducting environmental review even though these services may expose humans and the environment in which they live to harmful radiation
  • The FCC’s order renders any environment review that is done inadequate because it is based on inadequate health standards

The NRDC successfully argued against a 2018 order by the Federal Communications Commission that proposed to eliminate environmental and historic review for certain cell towers and other wireless infrastructure. The court overruled the Federal Communications Commission (FCC) arguments in favor of Native American tribes August 2019, giving them and all cities the right to require NEPA analysis (or provide proof of exemption) before cell towers are placed.

Amicus Briefs Filed

Amicus from National Resources Defense Fund and Numerous Elected Officials 

Amicus from the Building Biology Institute

Amicus from Attorney Joe Sandri

Amicus from Dan and Katherine Kleiber

*Thanks to EHTrust for providing these

Responses Filed

FCC Response filed September 22, 2020 stated they

  • Reasonably declined to propose new radiofrequency exposure limits
  • Properly credited outside experts in declining to propose new limits
  • The limits adequately protect children
  • Reasonably declined to propose new procedures for measuring radiofrequency exposure from cell phones
  • The Commission properly did not address ADA and FHA
  • Had no duty under NEPA to supplement its environmental impact statement
  • New information has not changed the scientific consensus that the radiofrequency exposure limits are safe

EH Trust and CHD Response to FCC Response filed on Oct 19, 2020 stated

  • FCC Response Uses Post-Hoc Rationalization and Improperly Relies
    on Extra-Record Evidence
  • Asks the Court to Engage in a Full and Complete Review Under the Arbitrary and Capricious Standard. 
  • FCC Failed to Address Non-Thermal Biological Mechanisms of Harm
  • FCC overstates and misconstrues the regulations’ scope
  • FCC Exhibits Astounding Indifference to Human Sickness and Suffering
  • FCC Arbitrarily Discounted Three Major RF/EMF Cancer Publications
  • FCC arbitrarily and capriciously relied on the “views” of biased and unreliable organizations
  • FCC arbitrarily and capriciously rejected independent scientific evidence from the majority of scientists
  • The Order Irrationally Ignored Substantial Evidence Demonstrating that Thermal-Based Testing Procedures are Inadequate
  • FCC Waived Its NEPA Defense and Did Not Satisfy Its NEPA Obligations
  • ADA/FHA, individual/constitutional issues and related preemption question must first be resolved at the Commission

*Press release and link to live press conference Wednesday Oct 21, 2020 at 3 PM EDT

History of the FCC Reevaluation Standards

  • GAO Report (2012)– In July of 2012 the U.S. General Accounting Office (GAO) issued a report, Exposure and Testing Requirements for Mobile Phones Should Be Reassessed. The authors stated, “The Federal Communications Commission’s (FCC) RF energy exposure limit may not reflect the latest research, and testing requirements may not identify maximum exposure in all possible usage conditions…By not formally reassessing its current limit, FCC cannot ensure it is using a limit that reflects the latest research on RF energy exposure. FCC has also not reassessed its testing requirements to ensure that they identify the maximum RF energy exposure a user could experience.”
  • FCC Initiates Reevaluation of RF Safety Standards Inquiry (2013) Docket 13-84.  In 2013 the Federal Communications Commission initiated an inquiry for public input into reevaluating radiofrequency safety standards. Titled Reassessment of Federal Communications Commission Radiofrequency Exposure Limits and Policies, Docket 13-84, FCC-13-84 and 03-137 First Report and Order Notice of Inquiry 2013  the Inquiry is to “determine whether there is a need for reassessment of the Commission radiofrequency (RF) exposure limits and policies.” The  report and order notes, Periodic review of the government’s rules and regulations to ensure they have kept pace with current knowledge and changing needs is an important characteristic of good government, and we here will advance the process of providing a comprehensive review and modification, where appropriate, of this Commission’s various rules pertaining to the implementation of the National Environmental Policy Act (NEPA) requirements for environmental reviews, specifically those reviews related to health and safety of radiofrequency (RF) emissions from radio transmitters.”
  • April 6, 2020 the Federal Communications Commission opened Docket 19-226 asking for comments on expanding non-ionizing radiofrequency radiation (RF) human exposure safety limits for new wireless telecommunications equipment that will emit RF frequencies above 6 Gigahertz (GHz),  FCC Docket 19-226 Human Exposure to Radiofrequency Electromagnetic Fields
  • FCC Votes to Uphold Current Standards for new wireless telecommunications equipment that will emit RF frequencies above 6 Gigahertz (GHz) and titled Resolution of Notice of Inquiry. The FCC press release Aug 8, 2019 states, “The item would maintain the existing RF exposure limits and thus resolve the Commission’s 2013 Notice of Inquiry that sought public input on whether to strengthen or relax its existing RF exposure limits.”  The FCC highlighted a letter from Dr. Jeffrey Shuren, Director of the Food and Drug Administration’s Center for Devices and Radiological Health who wrote, “The available scientific evidence to date does not support adverse health effects in humans due to exposures at or under the current limits.. and…no changes to the current standards are warranted at this time.”     The FCC issued their report stating, “Upon review of the record, we find no appropriate basis for and thus decline to initiate a rulemaking to reevaluate the existing RF exposure limits. This decision is supported by our expert sister agencies, and the lack of data in the record to support modifying our existing exposure limits. Specifically, no expert health agency expressed concern about the Commission’s RF exposure limits. … “We take to heart the findings of the Food & Drug Administration (FDA), an expert agency regarding the health impacts of consumer products, that “[t]he weight of scientific evidence has not linked cell phones with any health problems.”

Attorneys for the FCC Lawsuit

The petitioners are represented by Edward B. Myers W. of the Law Office of Edward B. Myers; and W. Scott McCollough of the McCollough Law Firm P.C.

The FCC is represented in-house by William J. Scher, Ashley Stocks Boizelle, Jacob M. Lewis and Richard Kiser Welch

Each time a man stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, he sends forth a tiny ripple of hope, and crossing each other from a million different centers of energy and daring those ripples build a current which can sweep down the mightiest walls of oppression and resistance.” – Robert F. Kennedy

Articles

Press Release Children’s Health Defense. Principal Brief Filed in Landmark Case Against FCC on 5G and Wireless Health Impacts.July 30, 2020.  https://childrenshealthdefense.org/wp-content/uploads/Untitled-document1.pdf

Petition for Review Docket No. 03-137 and Docket No. 13-84 to United States Court of Appeals. Environmental Health Trust and Children’s Health Defense vs FCC.20-1025 (Lead); 20-1138 (Consolidated) Files 7/29/20. https://childrenshealthdefense.org/wp-content/uploads/Joint-Brief-7-29-20.pdf

Environmental Health Trust is Taking on the Federal Communications Commission.Summary of Environmental Health Trust, et al. v. FCC. https://ehtrust.org/eht-takes-the-fcc-to-court/

Press Conference Evidentiary Brief Submission. CHD vs FCC. July 31, 2020. Attorneys Dafna Tachover, Robert F Kennedy Jr., Scott McCullough, with Dr. David Carpenter, Dr. Toril Jelter, Ysobel Gallo with microwave illness,  Virginia Farver,  https://www.youtube.com/watch?v=7zUelXUKzSk

GAO Report. Exposure and Testing Requirements for Mobile Phones Should Be Reassessed.  July 2012. https://www.gao.gov/assets/600/592901.pdf

FCC 19-226 Human Exposure to Radiofrequency Electromagnetic Fields. Federal Registry April 6, 2020   https://www.govinfo.gov/content/pkg/FR-2020-04-06/pdf/2020-06966.pdf

Letter to FCC by Congressman Peter DeFAzio regarding Reevaluation of Safety Standards. April 15, 2019. https://www.eugene-or.gov/DocumentCenter/View/46057/Rep-Peter-DeFazio—Letter-to-FCC-on-5G

Letter to FCC from the National League of Cities, The National Association of Counties,  the United States Conference of Mayors and the National Association of Telecommunications Officers and Advisors. Oct 2, 2017. FCC Letter NATOA NLC NACo Mayors Docket 13-84

Commentary on the utility of the National Toxicology Program study on cell phone radiofrequency radiation data for assessing human health risks despite unfounded criticisms aimed at minimizing the findings of adverse health effects. Melnick RL. Environ Res. 2019 Jan;168:1-6. https://pubmed.ncbi.nlm.nih.gov/30243215/

FCC Issues New Radiofrequency Safety Rules, Seeks Comments on Additional Measures. Dec 6, 2019. National Law Review. https://www.natlawreview.com/article/fcc-issues-new-radio-frequency-safety-rules-seeks-comment-additional-measures

EH Trust submissions for FCC regarding Reevaluation of Safety Standardshttps://www.fcc.gov/ecfs/search/filings?proceedings_name=13-84&q=filers.name:(Environmental%20Health%20Trust)&sort=date_disseminated,DESC

Comments to FCC on Reevaluation of Safety Standards by Timothy Schoechle, PhD . June 2, 2020.  https://mdsafetech.files.wordpress.com/2020/05/schoechle-fcc_19-126_comment-2020-06-02.pdf

FCC Resolution of Inquiry reevaluation of safety standards.Docket 03-137 and Docket 13-84.  https://docs.fcc.gov/public/attachments/FCC-19-126A1.pdf

CHAIRMAN PAI PROPOSES TO MAINTAIN CURRENT RADIOFREQUENCY EXPOSURE SAFETY STANDARDS.  FCC’s RF Exposure Limits for Handheld Devices are Among the Most Stringent in the Aug 8, 2019.  https://www.fcc.gov/document/chairman-pai-proposes-maintain-current-rf-exposure-safety-standards or. https://docs.fcc.gov/public/attachments/DOC-358968A1.pdf

FDA Letter from Dr. Jeffrey Shuren to FCC regarding standards for new 5G technologies . April 24, 2019.https://www.fda.gov/media/135022/download

Statement from Jeffrey Shuren, M.D., J.D., director of the FDA’s Center for Devices and Radiological Health on the recent National Toxicology Program draft report on radiofrequency energy exposure.Feb 2, 2018. https://www.fda.gov/news-events/press-announcements/statement-jeffrey-shuren-md-jd-director-fdas-center-devices-and-radiological-health-recent-national

FCC deems cellphones with 5G tech safe. Aug 8, 2019. CNET. https://www.cnet.com/news/fcc-deems-5g-safe/

Risks to Health and Well-Being From Radio-Frequency Radiation Emitted by Cell Phones and Other Wireless Devices. AB Miller et al. Frontiers in public Health. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6701402/

IEEE Revision to IEEE Standard C95.1-2005 for frequencies between 0 Hz and 300 GHz. Requested 2010. https://development.standards.ieee.org/myproject-web/public/view.html#pardetail/4007

FCC Radiofrequency Safety  https://www.fcc.gov/general/radio-frequency-safety-0

At FDA, a new goal, then a push for speedy device reviews. AP News. Matthew Perrone. November 27, 2018. https://apnews.com/9f8ea03a4d324d1ba5585680d280804b

Prevalence and Costs of Five Chronic Conditions in Children.  J Sch Nurs. 2016 Oct; 32(5);357-364. Miller GF et al. https://pubmed.ncbi.nlm.nih.gov/27044668/

A national and state profile of leading health problems and health care quality for US children: key insurance disparities and across-state variations. (2011). Bethell  CD et al.  Acad Pediatric. May-Jun 2011;11(3 Suppl):S22-33. https://pubmed.ncbi.nlm.nih.gov/21570014/

Prevalence of Chronic Health Conditions in Children With Intellectual Disability: A Systematic Literature Review. Intellectual and Developmental Disabilities. (2011)  Vol 49, Issue 2, April 1, 2011.Oeseburg B et al. https://meridian.allenpress.com/idd/article-abstract/49/2/59/1533/Prevalence-of-Chronic-Health-Conditions-in?redirectedFrom=fulltext

Dynamics of Obesity and Chronic Health Conditions Among Children and Youth. (2010) Van Cleave J et al. JAMA. February 17, 2010.  2010;303(7):623-630. https://jamanetwork.com/journals/jama/fullarticle/185391

Trends in the prevalence of developmental disabilities in US children, 1997-2008. (2011) Boyle CA et al. Pediatrics. 2011 Jun;127(6):1034-42. https://pubmed.ncbi.nlm.nih.gov/21606152/

Robert F Kennedy Speaks to Berlin Crowd about 5G, Peace, Freedom and Democracy. August 29, 2020. https://www.youtube.com/watch?time_continue=7&v=rOfEzw_V-Sw&feature=emb_logo

5G “small cell” proliferation takes a hit in Cambridge MA. Nexus NewsFeed. August 26, 2020. Scott McCullough.  https://www.nexusnewsfeed.com/article/health-healing/5g-small-cell-proliferation-takes-a-hit-in-cambridge-ma/

NRDC PETITION FOR REVIEW OF FINAL ORDER OF THE FEDERAL COMMUNICATIONS COMMISSION.Filed 8/5/20. https://www.nrdc.org/sites/default/files/amicus-brief-fcc-20200805.pdf

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