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

A joint lawsuit was won against the Federal Communications Commission (FCC) 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 challenged 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 in communities.  The lawsuit was won by the Petitioners (EHTrust, CDH and others) as per the DC Court of Appeals Decision on August 13, 2021. The Court stated, Under this highly deferential standard of review, we find the Commission’s order arbitrary and capricious in its failure to respond to record evidence that exposure to RF radiation at levels below the Commission’s current limits may cause negative health effects unrelated to cancer. In the ruling the court returned this decision back to the FCC and ordered the FCC to reexamine its standards for wireless radiation exposure and provide a review of wireless harms that is compliant with the law for non-cancer harms. The decision could be appealed. Oral arguments were heard by the DC  Court of Appeals January 25,2021.

Earlier OTARD (Over the Air Reception Device) Petition Not Successful

Note that another Petition to Review an FCC ruling on wireless antenna placement on homes was filed Feb 26, 2021 by CHD ( CHD vs FCC OTARD) failed. The original FCC OTARD (Over-the air reception devices) ruling allows quick deployment of wireless in neighborhoods and rural areas without permits or notification that was previously required. It preempts sate and local zoning laws, homeowners associations and deed restrictions. For the first time it allows property owners to place antennas for wireless and data services to their neighbors, including 5G.  Scroll down to see the information and extensive testimony and references filed in the OTARD Petition. An Opening Brief was filed6/23/21.

Updated 6/20/22

Petitioners Win Lawsuit Against Federal Communications Commission (FCC)  for Failing to Protect Public Health 

The Environmental Health Trust,  Children’s Health Defense and several other petitioners won an historic victory against the FCC on August 13, 2021, arguing the FCC failed to adequately assess the risks of wireless radiation to protect humans and the environment from non-cancer effects. They presented thousands of pages of testimony and studies to support their argument. The FCC is required by law to periodically evaluate the impact of radiofrequency (RF) devices such as cell phones and facilities for radio, TV, and cell phone communications on quality of the “human environment.” The Environmental Health Trust continues to place more scientific evidence of harm from RFR into the already scientifically robust FCC Docket 13-84.

The decision by the DC Circuit Court of Appeals states, “The Commission failed to provide a reasoned explanation for its determination that its guidelines adequately protect against the harmful effects of exposure to radiofrequency radiation unrelated to cancer.”

The Court Decision states,  “The National Environmental Policy Act (“NEPA”) and it’s implementing regulations require federal agencies to “establish procedures to account for the environmental effects of [their] proposed actions.” And “To fulfill its obligations under NEPA, the Commission has promulgated guidelines for human exposure to RF radiation…The Commission last updated its limits for RF exposure in 1996… The  ANSI and IEEE developed limits are designed to protect against “thermal effects” of exposure to RF radiation, but not “non- thermal” effects.  In March 2013, the Commission issued a notice of inquiry regarding the adequacy of its 1996 guidelines in response to changes in the ubiquity of wireless devices and in scientific standards and research since 1996. In December 2019, the Commission issued a final order resolving its 2013 notice of inquiry by declining to undertake any of the changes contemplated in the notice of inquiry.  Petitioners challenge the 2019 final order under NEPA and the Administrative Procedure Act (“APA”)

When an agency in the Commission’s position is confronted with evidence that its current regulations are inadequate or the factual premises underlying its prior judgment have eroded, it must offer more to justify its decision to retain its regulations than mere conclusory statements. See Am. Horse, 812 F.2d at 6; Am. Radio, 524 F.3d at 241. Rather, the agency must provide “assurance that [it] considered the relevant factors,” and it must provide analysis that follows “a discernable path to which the court may defer.” Am. Radio, 524 F.3d at 241.

DC Court of Appeals Conclusion

The Court concluded, “Under this highly deferential standard of review, we find the Commission’s order arbitrary and capricious in its failure to respond to record evidence that exposure to RF radiation at levels below the Commission’s current limits may cause negative health effects unrelated to cancer.” and that, “We find the Commission’s order arbitrary and capricious in its complete failure to respond to comments concerning environmental harm caused by RF radiation.”   ENVIRONMENTAL HEALTH TRUST, CHILDREN’S HEALTH DEFENSE AND PETITIONERS V. FEDERAL COMMUNICATIONS COMMISSION. August 13, 2021 decision.

Environmental Health Trust Press Conference on Ruling Against the FCC August 19, 2021

The Environmental Health Trust held a video press conference August 19, 2021  with several petitioners, as well as, Yale Professor of obstetrics and Gynecology  Dr. Hugh Taylor, who studied prenatal effects of RFR on developmental behavior in mice. Dr. Taylor is seen in this 2016 video, as part of the Baby Safe Project, discussing his research on effects of exposure to pregnant mice cell phones resulting in behavioral effects in their offspring. His paper was published in the prestigious journal “Nature” and is titled Fetal Radiofrequency Radiation Exposure From 800-1900 MHz-Rated Cellular Telephones Affects Neurodevelopment and Behavior in Mice. Aldid, T., Taylor H et al.  (2013) Nature. Scientific Reports 2, Article number: 312. Feb 18, 2013. 

Devra Davis,PhD., President and Founder of Environmental health Trust stated, ““Environmental Health Trust has worked for over a decade to protect the public from radiofrequency radiation, testified to Congress and published critical research on why children are more vulnerable. The FCC has ignored our extensive submissions to the FCC over the years which clearly document harm. As the legacies of lead, asbestos, and tobacco teach us, this issue deserves the immediate attention of our federal government in order to protect our children’s healthy future.” 

A Full Transcript of the August 19, 2021 press conference can be found here.  Dr. Davis noted that the original FCC standards for wireless radiation were set in 1996 and need to be updated. She highlighted, The world is very different [now], times have changed, but the FCC has not. “

Children’s Health Defense Press Conference on Ruling FCC August 16, 2021

Attorney Dafna Tachover led the Children’s Health Defense press conference on August 16, 2021. Speakers included CHD Founder and Chair Robert F Kennedy Jr, Dr. David Carpenter, Scott McCullough, the CHD lead attorney on the case, and Mary Holland, attorney and  President of CHD. Robert F. Kennedy Jr stated, “Those agencies no longer have any interest in protecting public health. They have become sock puppets for the industry that they are supposed to be regulating.”

New Study Supports Need to Lower Radiofrequency Radiation Levels

Uche and Naidenko (2021) in a new study confirmed the need for reassessment of current RF limits to protect health as well as to reduce levels 20–40-fold lower than the current legally permissible level. These are more in line with countries such as Italy and Russia.

History of the FCC Reevaluation Standards

With over thousand 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.” CHD

The Lawsuit was Filed July 29, 2020

 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


 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)

Update- Nov 20, 2020 the US Court of Appeals of the DC Circuit granted the request for oral arguments and scheduled the hearing for January 25, 2021. The hearing which was virtual and live-streamed can be viewed here.

Update- August 13, 2021 the DC Court of Appeals ruled in favor of the petitioners, EH Trust and Children’s Health Defense  on most counts and can be viewed here. 

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.For EHT documents on this case go to EHTrust is Taking on the Federal Communications Commission.

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.


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 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 with Statement from Linda Birnbaum, former Director of NIEHS and NTP

Amicus from Dan and Katherine Kleiber

*Thanks to EHTrust for providing these

Responses Filed

FCC Response filed September 22, 2020 stated they

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

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

Update 2/13/21

Oral Arguments Heard by U.S.  Court of Appeals for the District of Columbia

On January 25, 2021 oral arguments were heard by the Court of Appeals for the District of Columbia to consider along with an abundance of evidence provided.  Attorney Scott McCollough was given 10 minutes by the court to speak to judges Karen Henderson, Patricia Millett and Robert Wilkins. The judges had read the petitions,  briefs, as well as evidence submitted to the FCC by citizens and scientists the 6 years the FCC docket was open for comment.  Mr McCollough opened the argument with a quote from a woman who called the FCC to discuss her injury from RF radiation and was told by the FCC, “We don’t deal with humans, we deal with frequencies.” The judges seemed baffled that the FCC regulated health and asked tough questions to both the FCC and Mr. McCollough. 

Listen to the Oral Arguments by Attorney Scott McCollough representing Children’s Health Defense and Environmental Health Trust, Attorney Ashley Boizelle respresenting the Federal Communications Commission,  and the judges remarks on January 25, 2021 for the U.S. Court of Appeals for the District of Columbia Circuit. 

An article in NextTV News Noted, “The judges appeared concerned that the FCC was relying what appeared to be cursory sign-off by the Food And Drug Administration, pointing out that the record did not cite any input from an FDA committee or FCC working group charged by Congress with reviewing RF standards, and asked the FCC find out by close of business Tuesday whether those committees existed and had reviewed the standards.”

Law 360 reported in a January 25, 2021 article, DC Circ. Picks Apart FCC Over 5G Wireless Safety Review, that, “A DC Circuit panel on Monday appeared skeptical of the Federal Communication’s Support for it’s own findings that cellphones and other connected devices pose no risks to human health.” and questioned whether the FCC properly monitored harm to human or environmental health.  It will be several months for the court to render a decision. 

CHD Files Another FCC Petition as Over-The-Air Reception Devices (OTARD) Ruling Puts 5G Cell Antennas on Homes

A recently passed FCC OTARD Ruling permits private home owners to place fixed “point-to-point cell antennas supporting wireless service on their property, and, for the first time, to extend wireless data/voice services including 5G and satellites, to users on neighboring properties.”  The ruling allows this while eliminating all state and local zoning authority. No permits, homeowners restrictions or notice to neighbors are required.  A Motion to Stay was filed by CHD along with a Reply Motion for Stay. The  Court, however, Denied the Motion. The Children’s Health Defense (CHD) filled a Petition to Review against the FCC to stop the ruling on February 26, 2021 to amendpetition to REview  the over-the-air reception devices (OTARD) rule, because the rule change violates the Constitution and upends long-standing common law personal and property rights. The Commission does not have the power or authority to override rights to bodily autonomy or property-based rights to exclude wireless radiation emitted by third parties from their homes.”  A letter filed by CHD explains the reasoning.  An opening brief  was filed.  Over 15,000 individuals testified in opposition to this rule and this document contains their comments. Petitioners Opening Brief’s Footnotes and References OTARD- CHD vs FCC. Here are 246 comments from children, adults and families being affected by wireless radiation and giving testimony in the Addendum Record Reference. this is a list of references and testimony  in categories including Radiation Sickness, Disabled rights, Assault and Battery, Property Trespass,  Constitution Rights,  Local Control States Rights, Property Values, No notice, General health concerns. An Amicus Brief in Support of Petitioner’s was also filed.  The FCC filed an Amicus Brief as well. 

OTARD Petition for Review Fails

The OTARD Petition for REview was  decided in favor of the FCC on February 11, 2022.  OTARD “over-the-air reception devices,” Ruling. Children’s Health Defense et al vs FCC and USA. US Court of Appeals for the District of Columbia. Argued December 7, 2021, Decided February 11, 2022.    

DOCUMENTS- FCC vs EH Trust, Children’s Health Defense et al. 


Amicus Briefs 

Click on the Volumes Below to See the Links to the Massive Evidence Filed in EHT et al v. FCC Ignored by the FCC

Petitioners filed 11,000 pages of evidence – 447 exhibits in 27 Volumes —  in support of their  claims. Environmental Health Trust researchers filed 60 of the 447 exhibits.

Thanks to EH Trust for providing the documents.

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


Press Release Children’s Health Defense. Principal Brief Filed in Landmark Case Against FCC on 5G and Wireless Health Impacts.July 30, 2020.

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.

Environmental Health Trust is Taking on the Federal Communications Commission.Summary of Environmental Health Trust, et al. v. FCC.

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,

GAO Report. Exposure and Testing Requirements for Mobile Phones Should Be Reassessed.  July 2012.

FCC 19-226 Human Exposure to Radiofrequency Electromagnetic Fields. Federal Registry April 6, 2020

Letter to FCC by Congressman Peter DeFAzio regarding Reevaluation of Safety Standards. April 15, 2019.—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.

FCC Issues New Radiofrequency Safety Rules, Seeks Comments on Additional Measures. Dec 6, 2019. National Law Review.

EH Trust submissions for FCC regarding Reevaluation of Safety Standards,DESC

Comments to FCC on Reevaluation of Safety Standards by Timothy Schoechle, PhD . June 2, 2020.

FCC Resolution of Inquiry reevaluation of safety standards.Docket 03-137 and Docket 13-84.

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. or.

FDA Letter from Dr. Jeffrey Shuren to FCC regarding standards for new 5G technologies . April 24, 2019.

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.

FCC deems cellphones with 5G tech safe. Aug 8, 2019. CNET.

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.

IEEE Revision to IEEE Standard C95.1-2005 for frequencies between 0 Hz and 300 GHz. Requested 2010.

FCC Radiofrequency Safety

At FDA, a new goal, then a push for speedy device reviews. AP News. Matthew Perrone. November 27, 2018.

Prevalence and Costs of Five Chronic Conditions in Children.  J Sch Nurs. 2016 Oct; 32(5);357-364. Miller GF et al.

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.

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.

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.

Trends in the prevalence of developmental disabilities in US children, 1997-2008. (2011) Boyle CA et al. Pediatrics. 2011 Jun;127(6):1034-42.

Robert F Kennedy Speaks to Berlin Crowd about 5G, Peace, Freedom and Democracy. August 29, 2020.

5G “small cell” proliferation takes a hit in Cambridge MA. Nexus NewsFeed. August 26, 2020. Scott McCullough.


How the U.S. Became an Inferior Communication Nation. The Republican-controlled FCC has not only removed nearly all regulations but is allowing private companies to take over state utility wired networks. David Rosen, Nov 9, 2020.

DC Circ. Picks Apart FCC Over 5G Wireless Safety Review. January 25, 2021.

Court Hears Challenge to FCC’s 5G Radiofrequency Guidelines. January 25, 2021. John Eggerton.  Next Broadcasting and Cable News.

FCC Faces Skeptical Appeals Judges in Radiation Emissions Case. January 25, 2021. Bloomberg law.

EHTrust press conference on Monday, January 25, 2021.–k&feature=emb_logo


Oral arguments by Attorney Scott McCollough representing Children’s Health Defense and Environmental Health Trust, Attorney Ashley Boizelle respresenting the Federal Communications Commission,  and the judges remarks on January 25, 2021 for the U.S. Court of Appeals for the District of Columbia Circuit.

Development of health-based exposure limits for radiofrequency radiation from wireless devices using a benchmark dose approach. Uche and Naidenko. July 17, 2021.  Environmental Health 20. Article number 84(2021).

United States Court of Appeals for the District of Columbia Circuit. Argued January 25, 2021 Decided August 13, 2021 No. 20-1025. Filed by Circuit Judge Wilkins.   ENVIRONMENTAL HEALTH TRUST, ET AL., PETITIONERS V. Federal Communications Commission.

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