Source: Children’s Health Defense

Children’s Health Defense (CHD) is prepared to take the FCC back to court if the agency doesn’t comply with a 2021 court order directing it to review 11,000 pages of evidence supporting claims that wireless radiation at levels currently allowed by the FCC harms people — especially kids — and the environment.

In a motion filed today with the Federal Communications Commission (FCC), CHD urged the agency to collaborate with the U.S. Department of Health and Human Services (HHS) to set wireless radiation exposure limits that protect public health.

Miriam Eckenfels, director of CHD’s Electromagnetic Radiation (EMR) & Wireless Program, said the motion represents a “new phase of attack” against the FCC for its failure to comply with the 2021 court order.

“The document essentially tells the FCC to either protect people, or get out of the way and let other federal agencies, like HHS, set health and safety limits for wireless radiation exposure,” Eckenfels said.

The filing is important “because before we can go back to the D.C. Court and complain that the FCC hasn’t complied, we have to show that we’ve tried telling the FCC that they need to do what the court asked,” she added.

If the agency still doesn’t comply soon, CHD will be in a position to take the FCC back to court, she said.

The U.S. Court of Appeals for the District of Columbia Circuit didn’t give the FCC a deadline to comply. Since federal courts typically don’t interfere with the practices of federal agencies, CHD had to wait until a few years after the court issued the order before the court would realistically intervene in the FCC’s noncompliance.

Eckenfels said it’s “ridiculous” that CHD has to go to the FCC and tell the agency to do what the court told it to do. “The federal bureaucracy is stacked against people and you have to ask the very agency that is captured by industry to protect you, again and again.”

FCC hasn’t updated RF radiation limits since 1996, despite court ruling

On Aug. 13, 2021, the D.C. Circuit ruled the FCC failed to consider the non-cancer evidence of adverse health effects related to wireless technology when the agency determined its radiofrequency (RF) radiation safety limits — which hadn’t been updated since 1996 — adequately protected public health.

The ruling stemmed from CHD’s historic win in a case consolidated with the Environmental Health Trust (EHT), which also challenged the FCC’s decision not to update its 1996 limits.

The D.C. Circuit panel majority told the FCC it must do a better job of explaining how its 1996 limits adequately protected public health, and remanded the case back to the FCC. The ruling required the FCC to reopen its investigation into the agency’s RF radiation exposure limits to verify that they are adequately protecting people’s health.

The panel majority also told the FCC it must:

“(ii) address the impacts of RF radiation on children, the health implications of long-term exposure to RF radiation, the ubiquity of wireless devices, and other technological developments that have occurred since the Commission last updated its guidelines, and (iii) address the impacts of RF radiation on the environment.”

But the FCC has refused to do any of that, despite an April 2023 petition from CHD urging them to “quit stalling” and a petition in August from EHT urging the agency to comply with the court’s order.

Instead, on Sept. 9, the agency proposed new rules aimed at “eliminating barriers to wireless deployments” by silencing local communities that resist telecom companies’ efforts to build new cell towers next to their homes and children’s schools.

Agency said it has no plans to comply with  court order

W. Scott McCollough — CHD’s chief litigator for its EMR cases and the lead attorney for its 2021 win — told The Defender that the FCC also stated in a different proceeding that it has no plans to follow the court’s order before going forward with the proposed new rules.

McCollough wrote in the motion, “The FCC is acting with deliberate indifference to an obvious and pressing public health matter, all to serve, protect and advance industry rather than the people.”

He added:

“The Commission seems intent on doubling down and even further clearing the way for heedless unconstrained deployment, while flagrantly disobeying the court mandate.

“The FCC must stop all that and instead do the homework assigned by the D.C. Circuit before any other steps are taken to advance industry’s interests and inflict further harm on people and the environment.”

McCollough also told The Defender the FCC, in its proposed new rules, claims the agency has “exclusive authority” over RF “emissions,” meaning RF radiation emitted by wireless devices.

But that’s technically not true, he said. The FCC and HHS both have jurisdiction over RF “emissions,” but only HHS has statutory authority over RF “exposures.” That may seem like a subtle difference in wording, but it makes a big difference when it comes to interpreting U.S. law, McCollough said.

“The two agencies should collaborate and properly implement the regulatory regime envisioned by Congress in the relevant laws,” McCollough wrote in the motion.

HHS, FDA aware that RF radiation can harm health

In the 116-page motion, McCollough laid out why the FCC is legally bound to comply with the 2021 court mandate.

He also pointed out how the FCC, which isn’t a health agency, has historically relied on input it received from “sister agencies” like HHS. The FCC should especially seek input from HHS now, in light of the Make Our Children Healthy Again (MAHA) strategy report, McCollough said.

The MAHA strategy report, commissioned by the White House and released in September, states that HHS plans to partner with other federal agencies to study EMR and health “to identify gaps in knowledge, including on new technologies, to ensure safety and efficacy.”

McCollough wrote:

“HHS will therefore be working this topic, and it plainly anticipates doing so ‘in partnership with’ other agencies. … HHS likely has some ideas and suggestions on immediate and short-term next steps and actions that can be taken.”

McCollough noted that HHS and its component agencies, including the U.S. Food and Drug Administration (FDA), are aware that RF radiation can cause harm.

Last month, the FDA issued an alert about RF microneedling devices that “use an array of small electrodes, also known as microneedles, to deliver RF energy into and under the skin to produce local heating.”

According to the alert, the FDA has heard reports of microneedles causing serious complications, including burns, scarring, fat loss, disfigurement, nerve damage and the need for surgery or medical intervention to treat injuries.

CHD’s motion also included a long declaration by Paul Héroux, Ph.D., in which he traced the history, science and international regulatory environment of RF radiation.

Héroux, an associate professor of medicine at McGill University in Montreal, Canada, and a medical scientist in McGill University Health Center’s surgery department, is vice chair of the International Commission on the Biological Effects of Electromagnetic Fields — a “consortium of scientists, doctors and researchers” who study wireless radiation and make recommendations for wireless radiation exposure guidelines “based on the best peer-reviewed research publications.”

Related articles in The Defender

• FCC Defies Court Mandate, Delays Review of Cellphone Radiation Guidelines
• CHD Petitions FCC to ‘Quit Stalling’ on Court Order to Address Harmful Effects of Wireless Radiation
• ‘Historic Win’: CHD Wins Case Against FCC on Safety Guidelines for 5G and Wireless
• FCC Limits for Wireless Radiation Exposure Decades Out of Date, Experts Say
• Critics Blame ‘Agency Capture’ as FCC Seeks to End Environmental Safety Reviews for Cell Tower Projects