The basis for the Federal Communications Commission’s regulations of RF Exposure (“RFE”) can be found in the National Environmental Policy Act of 1969 (“NEPA”). The commission’s RFE rules currently in effect were adopted in 1996 upon the recommendation of the National Council on Radiation Protection and Measurements (“NCRP”). The rules regulate the maximum permissible exposure limits for field strength and power density of transmitters operating at frequencies between 300 kHz and 100 GHz. The commission also adopted specific absorption rate (SAR) limits for devices operating within close proximity to the body as specified within the ANSI/IEEE C95.1-1992 guidelines. The FCC rules currently applicable to RFE are 47 C.F.R. §§ 1.1307(b), 1.1310, 2.1091, and 2.1093, while the potential hazards associated with RFE are discussed in OET Bulletin No. 56, “Questions and Answers about the Biological Effects and Potential Hazards of Radio frequency Electromagnetic Fields.”

In 2003, the commission announced its intent to update/modernize its RFE rules. The commission noted that some transmitters and devices categorically excluded from routine environmental evaluation for RF compliance may be inappropriately excluded, and that certain exclusion criteria should be harmonized to govern similar facilities across different services. While the commission did not propose to modify the exposure limits that were developed in conjunction with other federal agencies that have primary expertise in health and safety, it did, however, make several evaluation requirement proposals related to compliance with the limits for human exposure from fixed, mobile and portable transmitters. The commission went through several rounds of comments on the various proposals, but the proceeding languished without any definitive ruling for almost a decade.

Continuing the commission’s review of its rules to comply with NEPA, on March 27, 2013, it issued: (1) a report and order, concluding several technical and semantic issues initiated in 2003, (2) a further notice of proposed rulemaking (NPRM), proposing to further update and revise FCC procedures and provide equal treatment across different services, and (3) a notice of inquiry (NOI), seeking comment to determine whether its RFE limits and policies need to be reassessed. Further, the NOI is intended to open a discussion on both the currency of the commission’s RFE limits and possibly new policy approaches to RFE regulation.

The Order

In the Order, the Commission resolved several issues relating to compliance with regulations for conducting environmental reviews under NEPA as they relate to the guidelines for human exposure to RFE fields. Specifically, the order provided clarification of the evaluation procedures and references to determine compliance with the commission’s RFE limits, including SAR as a primary metric for compliance, consideration of the pinna (outer ear) as an extremity, and measurement of medical implant exposure. The order also provides greater clarity on the mitigation procedures to ensure compliance with RFE limits, including labeling and other requirements for occupational exposure classification, clarification of compliance responsibility at multiple transmitter sites, and labeling of fixed consumer transmitters.

Further NPRM

By its further notice, the commission seeks comment on new proposals developed regarding compliance with the commission’s guidelines for human exposure to RFE fields. The new proposal would broadly revise and harmonize the criteria for determining whether single or multiple fixed, mobile or portable RF sources are subject to routine evaluation for compliance with the RFE limits or are exempted from such evaluations. Additionally, the further NPRM proposes (1) clarifications of evaluation requirements for portable and medical implant devices, (2) new requirements for signs and barriers at fixed transmitter sites to ensure compliance with public and occupational exposure limits, and (3) clarification of the definition of transient exposure for non-workers exposed at levels up to occupational limits.

The proposals made in the Further NPRM seek to streamline and harmonize many procedures to achieve equal treatment of RF-emitting sources based on their physical properties rather than service categories.  Toward this end, the commission proposes establishing general exemptions from evaluation to determine compliance in place of existing service-specific “categorical exclusions.” These new, general exemptions (determined using “simple calculations”) would replace the specific rule subparts, so as to treat all RF sources equally. Additionally, the further NPRM proposes to allow the computation of SAR for evaluation using any valid method to encourage technological development and greater competition in the computational software marketplace.

Notice of Inquiry

The current RFE rulemaking proceeding, initiated by the 2003 Notice, specifically excludes consideration of the commission’s exposure limits themselves. While the commission expresses confidence in the currently established RFE limits (which closely mirror widely accepted international standards), it now seeks to develop a current record to ensure that we are keeping up with the latest scientific developments. By this inquiry, the commission seeks comment on whether its RFE limits should be more restrictive, less restrictive, or remain the same.

The NOI seeks to establish a balance between public health and safety, and the costs to industry of compliance with any new RFE regulations. Toward that end, the Commission is asking commentors to provide sufficient data to perform a proper cost-benefit analysis, and to opine on the most cost-effective approach for modifying existing RFE policies and practices.

For more detailed information on the Order, NPRM and NOI, see: https://apps.fcc.gov/edocs_public/attachmatch/FCC-13-39A1.pdf

Michael L. Higgs Jr. is an attorney with Shulman Rogers who focuses on towers, infrastructure and privacy law.