- - Tuesday, February 23, 2021

Would you let your family fly in a plane or ride in a bus that meets 25-year-old safety standards? Yet, the Federal Communications Commission (FCC) assures us that wireless devices that meet last-century standards can safely be used by infants, toddlers and the rest of us.

During a fascinating hearing before the D.C. Circuit Court of Appeals on Jan. 25, the FCC maintained that 1996 standards can safely apply to testing devices many of which did not exist when those standards were first established.   

The FCC readily concedes it is not a health agency. For health advice, it relies on the Food and Drug Administration (FDA). In 1999, the FDA asked the National Toxicology Program (NTP), the government’s flagship testing program, to use standard animal testing protocols routinely used for extrapolation to humans and evaluate the impacts of non-thermal lifetime exposures to cellphone radiation. In 2018, the NTP issued the results of that $30 million state-of-the-art study, finding clear evidence of cancer and DNA damage.

In a remarkable about face, the FDA summarily rejected findings from the very study it had invited, reviewed and approved at several junctures, nonsensically questioning their relevance to humans, living up to its reputation as a captured agency.  

In reviewing our case, Environmental Health Trust et al v. FCC, the court asked the agency to show what expert advice it had relied on to dismiss the NTP study and thousands of pages of peer-reviewed science. The FCC had invoked the Interagency Radiofrequency Radiation Work Group, but could provide no evidence that this loosely affiliated, unfunded informal federal Work Group has either met or offered the FCC any advice in the past two years. 



The court then asked specifically whether the FDA had sought advice from its own Technical Electronic Product Radiation Safety Standards Committee, The FCC was forced to concede that that technical advisory committee has not met since 2016, is next scheduled to meet in fiscal 2021, and has never considered cellphone safety. In fact, that committee chiefly focuses on ensuring that electronic products do not interfere with each other. So you can be pretty sure that your phone will not block your tablet from working, but you have no idea whether either of them might interfere with your heart or cause damage to your DNA.

Apple last week admitted that its iPhone 12 needs to be kept off the body — away from any implanted pacemaker that can interfere with its operation. That hot new device sports a MagSafe gizmo so you can attach accessories magnetically and charge wirelessly. Of course, our heart is our natural pacemaker.  

So, what’s a safe distance? If you have a pacemaker, more than six inches in normal use and more than a foot if charging wirelessly. But what if you just want to be sure that you will not need a pacemaker or avoid atrial fibrillation or DNA damage? 

One judge noted that during the pandemic, the use of wireless radiating devices had flourished as had hours spent with them on our bodies and those of our children. Yet, the FCC was effectively asking the court to infer the absence of any health impacts from wireless radiation, without substantial evidence in the agency record, without having tasked specific designated competent agencies to look at this, and without showing it had made a systematic, rational effort to review submitted information.  

The court asked: “You want us to construe, as deliberation, that silence should be construed … that these relevant committees actually deliberated, actually reviewed the record and studies. So you are asking us to infer something that’s significant.” The judge noted that agencies get a lot of discretion: “You get a long leash. But, at some point that leash goes too far and becomes unreasonable without a little bit of followup by the FCC — to make… to verify… just to pin down that the information is responsive.”

The FCC appears to be saying it need not comply with the National Environmental Policy Act requiring assessment of all major federal actions, the Administrative Procedures Act demanding record-based reasoned and rational decision-making, or the Americans for Disability Act requiring accommodations for those with disabling electromagnetic illness.

Instead, in an audacious display of regulatory chutzpah, the FCC relies on the thin evidence provided by a limited FDA review, and rejects advice from the U.S. Fish and Wildlife Service regarding potential dangers to wildlife, the NTP and thousands of studies directly linking exposure to a wide range of illnesses.

Just last month, the Swiss government expert advisory group on electromagnetic fields and non-ionizing radiation released a stunning new evaluation of the experimental literature — much of which the FDA did not consider. Those experts conclude that EMF exposure, even in the low range, can cause or worsen a number of chronic illnesses, including diabetes and heart disease, and that children, the elderly and those with comorbidities, need special protections. 

In 1996, Congress decided the FCC should have the primary responsibility for protecting the public from radiation exposure even though it has no health expertise and typically sides with phone companies rather than citizens. That was a mistake, and something that must be changed. But until then we have to rely on the courts to ensure the FCC fulfills its duty.

• Devra Davis is president of EHTrust.org who served as a Clinton appointee from 1994-99 and was a member of the IPCC Awarded the 2007 Nobel Peace Prize.

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