On December 4, 2019, the FCC acted in its open proceeding to evaluate updates to its standards and regulations for radiofrequency (“RF”) exposure (ET Docket No. 03-137, 13-84 and 19-226). The new order is dense and technical but impacts both local public agencies and wireless site landlords in potentially important ways. Here are the key takeaways:
- No Change in RF Exposure Limits: In 2013, the FCC solicited public comment on whether changes in technology or science justified a change in its existing standards for human exposure to RF emissions. The new order closes that inquiry and concludes that the record did not support any changes at this time. Although the record contained numerous studies that purported to link exposures under the current standards to adverse health impacts, the FCC largely dismissed these studies as unreliable and their findings as impracticable. The FCC also stated that “no expert health agency expressed concern about the [FCC]’s RF exposure limits” but it will “continue to study and review publicly available science and collaborate with other federal agencies and the international community to ensure our limits continue to reflect the latest science.”
- New Methods to Evaluate Compliance with FCC Standards: Under existing FCC regulations, all transmitters must comply with RF exposure limits, but some are categorically exempt from routine compliance evaluation due to circumstances that render noncompliance unlikely. Different criteria for a categorical exemption applied to different facilities and services. The new order requires all facilities and services to undergo an evaluation and standardizes the analysis into three categories: (1) a blanket exemption for very low power devices; (2) a uniform standard for moderately-powered devices used close to the body; and (3) a uniform standard for all other facilities, which includes traditional cell towers. The FCC anticipates that these new standards will not change which facilities or devices qualified for categorical exemptions under the prior rules, but some industry commenters suggested that these new standards will result in fewer categorical exemptions for some existing facilities.
- Compliance Measures at Fixed Transmitter Sites: The new order sets out more specific rules and requirements to control access by the general public to areas around wireless facilities where exposures exceed maximum limits. These include signage with standardized content and placement, physical barriers and training programs for persons likely to encounter high exposures. These new rules do not require actual testing except in special circumstances. The FCC also declined to impose new obligations for compliance on third parties, such as the property owner, but suggested that the carriers could shift the obligation to the landlord through a lease agreement.
- Notice of Further Proposed Rulemaking: The FCC also sought further comments on two new proposed rules related to wireless devices. First, the FCC proposes to establish RF exposure limits for devices that operate below 100 kHz and above 6 GHz (which will encompass many new smart phones and other devices compatible with 5G technologies). Second, the FCC proposes new rules for “wireless power transfer” technologies that enable wireless charging, both at near and potentially very far distances.
This new order is significant on several levels.
The FCC’s decision to maintain existing RF exposure standards addresses criticism by the public and Congress that the agency failed to prioritize the more than six-year inquiry into new scientific research. However, the short shrift given to some studies in the record will likely raise new controversies over the FCC’s decision-making process.
Changes in the compliance evaluation process will impact both local public agencies that require compliance demonstrations for permit approvals. Local officials should consider whether their current requirements align with new standards.
Wireless landlords should also be concerned about their potential obligations to implement and maintain mitigation measures required for RF compliance. Now would be an appropriate to time to evaluate current site conditions and any applicable provisions in the lease agreement.
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