Cellular Phone Taskforce v. Federal Communications Commission

Nos. 97-4328(L) et al. (205 F.3d 82) (2d Cir. February 18, 2000)

ELR Digest

The court affirms two Federal Communications Commission (FCC) orders that promulgated guidelines for health and safety standards for radio frequency radiation. In addition to health and safety requirements, the guidelines streamlined procedures for meeting requirements under the National Environmental Policy Act (NEPA) for FCC licenses that are in compliance with the guidelines and retained to the FCC the exclusive ability to regulate the relevant radio facility operations. The court first dismisses claims that the guidelines violated the Americans With Disabilities Act and Rehabilitation Act. The claims were not presented to the FCC. Therefore, the claims were not the subject of a final FCC order and are not properly before the court.

The court next holds that the FCC's promulgation of the guidelines was not arbitrary and capricious, and that it did not violate the Administrative Procedure Act when it promulgated the guidelines. The FCC properly considered the evidence of harmful effects from non-thermal levels of radiation. Likewise, the record reveals that the FCC did not arbitrarily ignore or fail to follow expert recommendations to tighten the standard for radio frequency radiation. In fact, the FCC provided a reasoned response to each recommendation. Moreover, the FCC adequately explained the guidelines' increased maximum radiation exposure levels to hands and feet. Setting the maximum permitted exposure (MPE) level for the general public at one-fifth the occupational MPE level was considered adequate, and no evidence was presented that would render such a conclusion arbitrary and capricious. Similarly, the FCC accounted for the cumulative factors of radiation in creating categorical exemptions for certain facilities from NEPA environmental assessment requirements.

The court also holds that the FCC was not required to complete an environmental impact statement in conjunction with the rulemaking for the guidelines. The procedures followed by the FCC satisfied the functional compliance test. Further, the court holds that by not considering radio frequency radiation's interference with medical devices, the FCC did not violate NEPA by failing to take the required hard look at the environmental consequences of its actions. Only when individual radio frequency radiation facilities are constructed and operated will the circumstances arise with sufficient specificity to permit a meaningful evaluation. The court then holds that the FCC reasonably ruled that state and local governments are preempted from regulating radio frequency radiation. Last, the court holds that the FCC's implementation of the Telecommunications Act of 1996 does not violate the Tenth Amendment by commandeering local authority to administer a federal program.

The full text of this decision is available from ELR (11 pp., ELR Order No. L-182).

Counsel for Petitioners
James R. Hobson
Donelan, Cleary, Wood & Maser
1100 New York Ave. NW, Ste. 750, Washington DC 20005
(202) 371-9500

Counsel for Respondents
Joel Marcus
Federal Communications Commission
1919 M St. NW, Washington DC 20036
(202) 418-1700

[30 ELR 20402]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]