Will this Quell Public Concerns About the Safety of 5G Deployments?
As wireless carriers increasingly seek to install wireless networks on utility poles and street lights within communities across the country, they often encounter public opposition in the local approval process based on the facilities’ purported health risks. While these debates take place at the local level, local officials’ hands are largely tied, as Congress granted authority to establish radio frequency, or RF, emissions standards only to the Federal Communications Commission.
On Dec. 4, the FCC took action on RF emissions in a new RF Order that:
- Finds that existing RF exposure limits should remain unchanged;
- Resolves a Notice of Inquiry opened in 2013 with a 2nd Report and Order; and
- Issues a Notice of Proposed Rulemaking regarding impacts of certain high frequency emissions (comments on the proposed rule are due 30 days after publication in the Federal Register).
Summary of Key Findings in RF Order
The National Environmental Policy Act of 1969 requires the FCC to evaluate the effects of its actions on the quality of the human environment, including human exposure to RF energy emitted by FCC-regulated transmitters and facilities, and to set standards limiting exposure to RF emissions. The FCC regulates the safety of devices that are typically near a human body (such as cell phones) based on expected absorption of RF emissions, known as the Specific Absorption Rate, or SAR. It also regulates other transmitters based on the anticipated exposure to RF emissions by the public and by specialized workers, known as the Maximum Permissible Exposure, or MPE.
RF Order Actions
RF Emissions Standards:
- The FCC makes no changes to RF emissions limits it established principally in the 1990s: “[N]o expert health agency expressed concern about the Commission’s RF exposure limits. Rather, agencies’ public statements continue to support the current limits.” (RF Order ¶ 10)
- The FCC declines to make special standards for RF exposure levels for children, saying “… the standard for determining the compliance… was designed to test for effects on children as well as adults.” (RF Order ¶ 15)
- The FCC declines to alter its RF standards based on non-thermal biological effects in humans, noting that the FCC “rigorously analyzed [its] RF exposure framework and have dismissed the notion that the existing framework should be altered on account of any ‘non-thermal’ effects.” (RF Order ¶ 152)
- The FCC establishes a single, generally applicable set of formulas for both single and multiple RF emissions sources based on power, distance and frequency that must be used to determine whether a device or transmitter falls into three new exemption classes. These exemptions may be applied by any applicant seeking equipment authorization or any licensee seeking deployment or commencement of operations. (RF Order ¶ 22)
- These new exemptions include: :
- Low-power devices that transmit at no more than 1 mW (typically implanted devices),
- Higher-power devices with transmitting antennas that operate between 0.5 cm and 40 cm of the body in the frequency range of 300 MHz and 6 GHz that fall within a specified SAR (typically cell phones) and
- All other transmitters based on MPE values (typically antennas).
- If a device or transmitter qualifies for one of these new exemptions, the licensee or applicant is not required to conduct more rigorous testing to determine compliance with the FCC’s RF exposure standards, such as a routine RF evaluation or an Environmental Assessment under NEPA. However, they still must comply with existing environmental requirements under 47 CFR 1.1307(a) and other requirements such as signage and access controls discussed below.
- Where RF exposure is generated from multiple sources, the aggregate exposure level will be the basis for determining compliance. (RF Order ¶ 57) Mobile sources (such as cell phones) need not be taken into account.
- If the device does not qualify for an exemption, then the licensee or applicant must conduct a routine RF evaluation but may use any “valid computational method” to demonstrate that the device meets the RF standards.
- The FCC reaffirms its prior RF emission evaluation procedures for cell phones and consumer portable devices. (RF Order ¶ 14)
- The FCC rejects industry requests to adopt specialized exemptions for small wireless facilities or DAS transmitters that will be prevalent in 5G deployments. Instead, such facilities will have to be evaluated under the same exemption process stated above. However, the FCC asserts that evaluation may be done quickly and efficiently as similarly located small cell deployments that share technical characteristics (i.e. small cell deployments with the same equipment and placed at the same height) will all qualify for the same exemption and the applicant need only replicate the exemption analysis for each deployment. 
- The FCC rejects requests for an increased reliance on field testing in favor of computational modeling for determining compliance with the RF standards. The FCC believes that computational methods are generally more restrictive than field measurements because they typically utilize conservative assumptions and are therefore more protective of the public than field measurements. (RF Order ¶ 72)
Signage and Access Controls:
- The FCC adopts four categories of locations and “standard mitigation actions” that must be taken to ensure exposure limits for the general population and occupational personnel are not exceeded. These measures include signage, access controls and other restrictions. (RF Order ¶ 80)
- The FCC rejects local government request for permission to impose additional, local signage and access restrictions for preventing RF exposure. (RF Order ¶ 114) This potentially undercuts the recent Ninth Circuit decision in CTIA v. City of Berkeley in which the court upheld a local requirement that cell phone retailers display in-store signage repeating safety warnings contained in cell phone packaging.
- The FCC declines a wireless industry request to create a “safe harbor” defense for liability for injuries due to RF exposure based on compliance with mitigation actions. It also requires licensees to demonstrate that they have employed adequate due diligence in designing reasonable and required protections to reduce RF emission exposure to defend against claims of injury from RF sources. (RF Order ¶ 107)
Effective Date and Appeals
- The rule changes in the RF Order (with one exception related to information collection) go into effect 60 days after publication in the federal register.
- Petitions to review the RF Order must be filed with the appropriate federal court of appeals within 60 days of publication.
Notice of Proposed Rulemaking
The FCC seeks comment on a number of proposed rules:
- Expanding the range of frequencies for which the RF exposure limits apply, (noting that exposure limits are already in effect from 100 kHz to 100 GHz), including proposals for RF emissions limits for certain higher-frequency devices and antennas, including incorporating similar localized exposure limits above 6GHz into existing localized exposure limits already established for frequencies below 6 GHz , (RF Order ¶ 120)
- Specifying the conditions and methods by which the limits are averaged, in both time and area, during evaluation for compliance with the rules and
- Addressing issues raised by Wireless Power Transfer devices, which are defined as “a category of ISM equipment that generates and emits RF energy….” such as a wireless charging station.
Comments and reply comments will be due 30 days and 60 days after Federal Register publication.
It is unlikely that this RF Order will end all public debate on the safety of RF emissions, as the FCC refused to alter its RF standards to account for potential non-thermal effects, noting that no studies or reports in the record before them justified altering the RF standards. Local governments should also be aware that the FCC announced that its Office of Engineering and Technology will update its compliance guide and Bulletin 65 in light of these new rules, which will be available on its Knowledge Database.
 Federal law adopted in 1996 prohibits state and local governments from regulating placement, construction and modification of wireless facilities on the basis of the environmental effects of RF emissions to the extent that the wireless facilities comply with the FCC’s regulations concerning RF emissions. (47 USC 332 (c)(7)(iv)).
 Recently, the D.C. Court of Appeals overturned a 2018 FCC order that had declared small wireless facilities not to be a “federal undertaking” under NEPA.