National Law Review: Court May Reverse the FCC’s Radiofrequency Emission Limits Decision

On Jan. 25, 2021, the U.S. Court of Appeals for the D.C. Circuit heard oral argument on the Federal Communication Commission’s (FCC’s) 2020 decision on radiofrequency emission limits (RFE) in which the FCC made a number of procedural changes to its rules but essentially left the RFE limits adopted in 1996 unchanged. See the Jan. 23, 2020 blog entry “Old Limits and New Procedures for FCC RF Exposure Rules” for detailed discussion of the FCC decision.

Press reports indicate that the FCC position was not well received by the Court of Appeals. Strikingly, one of the judges reportedly stated during oral argument that he was inclined to rule against the FCC because the agency’s reliance on U.S. health and safety agencies’ judgments was not well substantiated. The FCC does have an opportunity to add to the record of the case to try to bolster its position.

If the FCC decision is reversed, it could result in an extended period of uncertainty for domestic RFE standards, which would likely raise substantial issues and problems for both manufacturers of wireless radio equipment and network operators. Generally, demonstration of compliance with the FCC’s RFE rules is a safe harbor for equipment manufacturers and system operators and is intended to reassure the public of the safety of RF devices such as smartphones.

The FCC took more than six years to reach its decision to not change the 1996 limits. If the Court of Appeals reverses the FCC and that decision stands (the FCC could request further review in the courts), a multi-year period with U.S. RFE limits no longer deemed valid or appropriate could prove highly disruptive to the wireless industry ecosystem and be unsettling for consumers.

Stay tuned for developments in this case. We will follow-up when the court issues its decision.

by Michael T. N. Fitch