October 30, 2003

FCC Stands Firm on RF Radiation Standards – For Now

Holland & Knight Newsletter
Charles R. Naftalin

In a recently released Order, the FCC denied the requests of EMR Network (EMR) to initiate a proceeding to revisit current Commission guidelines for evaluating human exposure to radio frequency (RF) radiation emissions from transmitters and antennas.

  The FCC requires that all permittees, licensees, and owners or lessors of antenna structures and buildings that support transmitting facilities, must protect employees, contractors and members of the general public from exposure to RF radiation deemed harmful to health under federal guidelines.  In locations with many operating antennas, such as some building rooftops, antenna structures and antenna “farms,” all participants are jointly and severally liable under the RF radiation rules of the FCC and other agencies.  Typically, the rules require that qualified engineers determine the areas where harmful exposure would occur, and substantial measures must be kept in place to prohibit public access to such areas – typically by fences, locks and warning signs. Participants also are required to maintain a coordinated plan to reduce transmission power, or cease operations altogether, in the event that personnel must enter restricted areas. 

In its petition filed September 2001, EMR requested that the Commission initiate a proceeding to gather information and opinion about the need to tighten its regulations regarding human exposure to RF radiation.  EMR observed that the Commission’s current RF limits are several years old, and asserted that there are a number of studies that purport to demonstrate a health hazard from RF radiation that is not contemplated in current FCC 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.  The FCC concluded that it had properly relied on the expertise of health and safety agencies dealing with RF exposure issues and that EMR failed to advance any argument that persuaded the FCC otherwise.  This is not to say that the FCC could not or would not initiate action in the face of compelling evidence of a need for such action.  But where, as here, the FCC found that other more expert agencies have the same information as the FCC and do not see reason for new action, it would be difficult for the FCC to ignore the tacit conclusions of those agencies absent a compelling case to do so.  When there is an appropriate indication by such agencies, or other expert sources, whether self-initiated or in response to outside petition or activities, the Commission stated that it could consider the need for an investigative effort in support of possible exposure rules revisions. 

The FCC’s Order follows established precedent that gives the FCC broad discretion to decide whether it will consider proposals for possible changes in its rules.  In this instance, the FCC concluded that until there is an “appropriate indication by [health and safety] agencies [in this area] or other expert sources” constituting a compelling case for the reexamination of its existing rules, it would not initiate such action. 

In June 2003, the FCC released a new Notice of Proposed Rulemaking (NPRM) in which it proposed to revise its “SAR” (specific absorption ratio) human exposure compliance requirements.  The Commission stated that it does not intend to change any of its RF radiation standards (including those noted previously in this article) but may adjust its required measurement, labeling and warning procedures.  For example, the FCC proposes to make the following changes:

  • Revise and harmonize the criteria for determining whether transmitters used in a number of services are subject to routine evaluation for compliance with the RF exposure limits, or are categorically excluded from such evaluations.
  • Clarify the procedures for evaluating RF exposure from mobile and portable devices, including modular transmitters.
  • Add more specific definitions and compliance procedures relating to RF exposure of workers (occupational exposure).
  • Develop consistent labeling requirements to ensure the compliance of certain types of RF devices.
  • Consider certain issues related to spatial averaging of exposure, including how to account for localized exposures where spatial peak measurements might exceed the exposure limits.
  • Make certain changes in its rules to eliminate inappropriate references or make evaluation procedures consistent and complete.
  • Provide a transition period for the implementation of any new rules.

We anticipate substantial participation in this proceeding, which invites comments and reply comments from anyone interested.  

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