Memorandum
To:
Interested parties
From:
James Hobson
Date:
April 12, 2013
Re:
FCC order and proposals on radiofrequency (“RF”) radiation safeguards
SUMMARY
For the first time in 17 years the FCC is proposing to review the thermal (tissue-heating) basis of
its rules aimed at protecting humans from RF radiation. Because the agency is not expert in the
subject, but nevertheless is charged with enforcing the safeguards, it is calling for help from
better-informed agencies and from the knowledgeable public.
With respect to enforcement, the FCC proposes to harmonize and standardize demonstrations of
compliance by adopting thresholds of power, distance and frequency for routine environmental
evaluation. Below those thresholds, services or devices would be exempt, with one milliwatt (1
mW) of power or less constituting a blanket exemption. It seeks to clarify the precautions for
“uncontrolled” (general population) and “controlled” (occupational) environments.
While expressing confidence in the present thermal basis for the safeguards, the Commission
acknowledges that the proliferation of wireless devices and the ubiquity of antennas, together
with miniaturizations allowing close-to-the-body operation and medical implantation, demand a
fresh review.
INTRODUCTION
On March 29, 2013, the FCC released an Order, Notice of Proposed Rulemaking
(“NPRM”) and Notice of Inquiry (“NOI”), all in a single document (FCC 13-39). The document
had been on circulation -- for approval through sequential signature by Commissioners -- since
June of 2012. Once published in the Federal Register, comments on the NPRM and NOI will be
due in 90 days, replies in 150 days. Persons wishing to challenge the Order would have 30 days
to seek FCC reconsideration or 60 days to appeal to a U.S. Circuit Court.
The Order makes relatively minor changes in the existing rules dating from 1996,
clarifying how wireless providers and equipment makers may demonstrate compliance and
establishing Specific Absorption Rate (“SAR”) as an alternative to Maximum Permissible
Exposure (“MPE”) standards found at Section 1.1310 of the regulations. The decision also
determines that for SAR purposes, the outer ear (“pinna”) may be considered a body extremity,
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along with hands and feet and wrists and ankles, and gives special attention to radiation
associated with medical implants.
The NPRM proposes to harmonize and make uniform across all wireless services criteria
of power, antenna separation and frequency that will determine whether a facility or device is to
be exempt from routine evaluation for harm to the human body and environment. This would do
away with “categorical exclusions” now found in Section 1.1307(b) of the rules and largely
based on transmitter power and height above ground. The NPRM also discusses at length the
distinctions between general population and “occupational” exposure to RF radiation and
proposes new requirements for signs and barriers at transmitter sites.
The NOI focuses on three elements: “the propriety of our existing standards and policies,
possible options for precautionary exposure reduction, and possible improvements to our
equipment authorization process and policies as they relate to RF exposure.” (¶ 5) The first two
of these elements turn on the question of whether “thermal” harms (tissue-overheating) are the
only RF radiation risks or dangers to be avoided, or whether other kinds of human biological
damage might be caused by “chronic” exposures whose effect might accumulate over longer
than the time-averaging periods used in the current FCC rules.
BACKGROUND
The Commission first considered in 1979 its responsibilities to regulate the“biological
effects of radio frequency radiation when authorizing the use of radio frequency devices” under
the National Environmental Policy Act (“NEPA”). (¶ 208) In 1985, it adopted standards modeled
on recommendations of the Occupational Safety and Health Administration (“OSHA”). Not
until 1993 did the FCC begin the rulemaking that led to the 1996 adoption of the current rules,
which then emerged from reconsideration largely unchanged. In 2000, the U.S. Court of
Appeals upheld the regulations, but three years later the FCC opened another docket (03-137) to
consider certain incongruities in the application of the rules without proposing to change their
foundation in perceived thermal harm. (¶¶ 10-13) Over the intervening decade, scientists and
advocates have continued to debate the biological basis of RF radiation’s effect on humans, but
the Commission’s rules remain as written in 1996.
The present review was encouraged by a report from the Government Accountability
Office (“GA0”) in July of 2012 which recommended that the Commission:1

• Formally reassess the current RF energy exposure limit, including its effects on human
health, the costs and benefits associated with keeping the current limit, and the opinions
of relevant health and safety agencies, and change the limit if determined appropriate.
• Reassess whether mobile phone testing requirements result in the identification of
maximum RF energy exposure in likely usage configurations, particularly when mobile
phones are held against the body, and update testing requirements as appropriate.
“Telecommunications: Exposure and Testing Requirements for Mobile Phones Should be Reassessed.”
http://www.gao.gov/assets/600/592901.pdf
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REPORT AND ORDER
The human body’s absorption of RF radiation and consequent tissue heating varies not
only with radiated power but also by body part and frequency of the transmission. The FCC has
defined Specific Absorption Rate (“SAR”) as “a measure of the amount of radio frequency
energy absorbed by the body when using a mobile phone.” The agency’s explanation continues:
“The FCC limit for public exposure from cellular telephones is a SAR level of 1.6 watts per
kilogram (1.6 W/kg). http://www.fcc.gov/encyclopedia/specific-absorption-rate-sar-cellulartelephones For purposes of the present review, this can be transposed to 0.0016 watts (1.6
milliwatts, or mW) per gram of body tissue.
Although all of the Commission’s exposure limits derive from SAR, until now the term
has been used only to describe safe limits on radiation from hand-held portable phones or from
radiating devices such as “modular or desktop transmitters” which cannot be clearly classified as
mobile.2 The Order determines that SAR may be used as a compliance measure for fixed and
mobile antennas, as an alternative to the MPEs that rely on electric or magnetic field strength or
power density. The FCC acknowledges, however, that SAR can be difficult to measure and that
a SAR demonstration cannot substitute for a failed MPE test. (¶¶ 23, 25)3
In what may be taken by some laypersons as counter-intuitive, the Order (¶ 43) confirms
the agency’s 2003 proposal to treat the “pinna,” or outer ear, as an extremity equivalent to hands
and feet for RF radiation exposure purposes. In the public mind, one large risk of cellphone
overuse is radiation through the ear into the brain. Nevertheless, the FCC relies on the ear’s
separation from the head and the IEEE’s relatively recent amendment to its 1995 standards to
reclassify the pinna as an extremity.
In an extended discussion of “mitigation” at Section II.B of the Order, local governments
and zoning authorities are reminded (¶ 57, Appendix H) not to over-extend their rights to assure
wireless industry compliance with RF radiation rules under Section 332(c)(7)(A) of the
Communications Act. The discussion at Appendix H does not alter the advice jointly issued by
the FCC and a local government advisory body in 2000, but this is sure to be a topic of
discussion in comments on the NPRM.
The Order defers to the NPRM most discussion of joint responsibility for radiators at
multiple-transmitter sites, but warns (at ¶ 80) that liability cannot be deflected to a single
transmitter operator and that “failure to comply at multiple use sites can result in penalties for all
site occupants that contribute significantly to exposure, not just the newest occupant or the
occupant which contributes the most to exposure.”
2
See, for portable units, 47 CFR §2.1093(d), and for hybrids, 2.1091(d).
Relatedly, at ¶ 28, the Order discontinues OET Bulletin 65C in favor of the developing OET Knowledge Database
(“KDB”)
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NPRM
Buried in footnote 176 is a quote from a Third Circuit case, Farina v. Nokia, which could
serve as a prologue for both the NPRM and the NOI:
In order to satisfy both its mandates to regulate the safety concerns of RF emissions and
to ensure the creation of an efficient and uniform nationwide network, the FCC was
required to weigh those considerations and establish a set of standards that limit RF
emissions enough to protect the public and workers while, at the same time, leave RF
levels high enough to enable cell phone companies to provide quality nationwide service
in a cost-effective manner.
There is not much room in these sentiments, we submit, for the practice of “prudent avoidance”
of harms not fully proven, but there is ample basis for industry assertions that local zoning is
inhibiting the economic deployment of cellular service. We should also expect that wireless
service providers and device makers who are not in the business of “personal wireless service”
will push to extend the FCC preemption beyond that classification.
The proposals in the NPRM largely are issues left unresolved from the 2003, some of
which have “evolved significantly” in the past decade. (¶ 108) The FCC does not want to hear
about changes in radiation protection standards here, but in the NOI, discussed infra. Instead,
the emphasis is on evaluation of compliance with the present rules. An important new
distinction is between “exemption from routine evaluation” and the older “categorical
exclusion.” In proposed new rules, “exclusion” refers to the further reviews known as
environmental assessments (“EAs”) and Environmental Impact Statements (“EIS”). As stated at
¶114: “we propose exemption criteria based on power, frequency, and separation distance (rather
than antenna height above ground)4 uniformly across all services (rather than just the services in
Table 1 of section 1.1307(b) of our rules).” (emphasis added)
The new table of exemptions would look like this (¶ 130):
4
One of the risky anomalies of the present height criterion is that an antenna could be operating just below max
power of, say, 1000 watts ERP and still be categorically excluded from review no matter its elevation. This was
pointed out to the Second Circuit in briefs on appeal, but the Court was disinclined to second-guess the FCC. At
least now that anomaly would be removed in favor of a standard distance separation related to wavelength and a
mathematical constant, pi.
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Table 1. Single Fixed, Mobile, and Portable Transmitting Antennas Proposed to be
Subject to Routine Environmental Evaluation
Transmitter Frequency
Threshold ERP
(MHz)
(watts)
Regardless of ERP, evaluation is required if the separation distance from the radiating
structure, R, is less than λ/2π, where λ is the free-space operating wavelength, unless the
available maximum time-averaged power is less than one milliwatt. In addition,
evaluation is required if the ERP in watts is greater than the value given by the formula
below for the appropriate frequency, f, in MHz at the separation distance, R, in meters.
0.3 – 1.34
ERP ≥ 1,920 R²
1.34 – 30
ERP ≥ 3,450 R²/f²
30 – 300
ERP ≥ 3.83 R²
300 – 1,500
ERP ≥ 0.0128 R²f
1,500 – 100,000
ERP ≥ 19.2 R²
Note, however, that time-averaged power below one milliwatt gets a “blanket” exemption
explained at ¶ 126, unless special risk circumstances are shown. The FCC asserts that the
numbers in the table are “worst-case” and “intended to identify only situations where further
evaluation is necessary.” (¶ 133)
The table above would apply in summation to multiple transmitters operating in the same
30-minute time averaging period. (¶141) The formula for allocating responsibility among
operators will be of chief interest to wireless industry applicants, but local zoning or public
health authorities would be well advised to understand the derivation because of the general
increase in collocated antennas.
The translation of the MPE-based exemptions in the new table to SAR standards for
objects close to the human body is discussed at ¶¶ 145-169 and at Appendix D. The proposal
would apply to separation distances of a half-centimeter to 40 cms. (¶ 147) This is hard going for
non-experts, and bears out the FCC’s acknowledgment (¶¶ 23, 25) that SAR can be difficult to
apply. Those zoning and health authorities called upon to review SAR evaluations should
consider now – and in comments and replies, if they choose – whether and how they will muster
the necessary expertise.
Section IV.D on mitigation is more accessible to most readers. The key message is that
the “general population” exposure standards (lower thresholds, longer averaging times) are to
apply unless individuals have been specially trained to the occupational standards. Thus,
“transient individuals in controlled (occupational) environments should not be exposed in excess
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of the general population limit considering averaging time, and not in excess of the occupational
limit for continuous exposure at any time.” (¶ 177)
At IV.D.2, proximity restrictions and warning signs are considered in the context of a
wireless environment radically changed since 2003. This includes a proliferation of smaller
antennas at lower levels, many of them purposely disguised or blended into the human
environment. (¶186) The NPRM proposes (¶ 190) a classification of exposure danger zones
ranging from general population limits through occupational maxima to 10 times occupational
maxima and beyond.
NOI
This section opens with the FCC’s continuing expression of confidence in the current
thermally-based standards for protection of humans from RF radiation. It notes that the
relatively few changes in recommended precautions since 2003 have maintained this thermal
basis of harm. The GAO report of last year is no different. Its first question was why the
Commission had not moved to the higher exposure standard of 2 watts per kilogram sanctioned
by the IEEE and other bodies.
While both the NOI and the GAO report refer in passing to studies purporting to examine
non-thermal effects of RF radiation, these are not discussed extensively or comprehensively.
The GAO verdict, between the lines, is “unproven.” The FCC is more circumspect.
The FCC acknowledges repeatedly (e.g. ¶ 6) that “since the Commission is not a health
and safety agency, we defer to other organizations and agencies with respect to interpreting the
biological research necessary to determine what levels are safe.” At the same time, the agency
remains confident of its ability to understand and stay abreast of scientific research on the human
effects of RF radiation, and if necessary “to make an independent determination as to the
adequacy of its exposure limits” even if more expert bodies do not participate in the current NOI.
(¶ 215)
Called out for special attention is the tentative identification of RF radiation as a possible
carcinogen by the International Association for Research on Cancer (“IARC”) of the WHO,
where the detailed monograph is said to be unavailable at this time. (¶219) Parties having access
to recent versions of the study ought to consider putting it on the docket record here if that would
be lawful.
The FCC’s general faith in the thermal basis of its present regulations does not extend to
certain special cases that it has long deferred – “pulsed” (as opposed to continuous-wave)
radiation; contact and induced currents; and conductive implants. (¶¶ 224, 225, 230) While these
topics may be of particular interest to employers of electricians and wearers of implants and
their doctors, the topics are ripe for the introduction of relevant research by any commenter.
Under the rubric of consumer information, the FCC notes that it keeps records on the
SAR of particular cell phones but acknowledges that access to the information depends on
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knowing the FCC ID number for the unit as printed on the device. (¶ 235) The NOI asks
whether the FCC should produce a more useful database or whether existing non-governmental
sources of information are adequate.5
As noted earlier, the NOI is skeptical of mandating “prudent avoidance” as a regulatory
strategy, while commenting neutrally on the California Public Utilities Commission’s
(“CPUC’s”) action of 20 years ago to require power utilities to allocate small percentages of line
construction costs to reduction of exposure to low-frequency (ELF) emanations.6 (¶ 238)
Acknowledging the technical advantages of Distributed Antenna Systems (“DAS”) in some
cases, the NOI nevertheless asks whether their deployment would reduce or increase RF
radiation exposure – presumably owing in part to the greater number of antennas and their
proximity to passers-by. (¶ 239) The most challenging question is posed at :
Given the complexity of the information on research regarding non-thermal biological
effects, taking extra precautions in this area may fundamentally be qualitative and may
not be well-served by the adoption of lower specific exposure limits without any known,
underlying biological mechanism. Additionally, adoption of extra precautionary
measures may have the unintended consequence of “opposition to progress and the
refusal of innovation, ever greater bureaucracy,… [and] increased anxiety in the
population.” (footnote omitted)
Finally, the NOI asks (¶¶ 251, 252) whether its evaluation procedures for cellphones and
other “body-worn” radiators should change to match the various possible orientations in which
devices are used, and whether manufacturer instructions or other means should alert the wearers
to the need for “spacers” against direct body contact.
CONCLUSION AND RECOMMENDATIONS
Interested parties (and most every U.S. citizen should be interested) would be remiss not
to participate in the NPRM and NOI. Publication in the Federal Register remains pending, thus
the time for expressing views is at least five months. Local governments responsible for public
safety and wireless facility zoning are all too familiar with citizen unrest over the unresolved
science of RF radiation effects and the misunderstood roles of federal vs. state and municipal
governments. Public concern often focuses on proximity of antennas to schools and RF
radiation’s effects on children. Those who are able to contribute to the scientific debate should
do so, of course, but so should citizens and their elected officials who weekly or monthly bear
the brunt of disputes on the topic. Especially appropriate for lay comment are the benefits and
costs of “prudent avoidance” as teed up by the NOI.
San Francisco’s efforts to inform consumers about cellphone radiation dangers were faulted as not clearly “factual
and non-controversial” under Supreme Court precedent. CTIA v. City and County of San Francisco, Nos. 11-17707,
11-17773, USCA-9, September 12, 2012, unpublished.
6
Some local government advocates in California have contrasted the CPUC’s precautionary actions on ELF
exposure with its ready acceptance of digital “Smart Meters” for measuring energy consumption.
http://delaps1.cpuc.ca.gov/CPUCProceedingLookup/f?p=401:36:710039170489501::NO:RP:P2_PROCEEDINGYE
AR_SELECT:A1103014
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