SUCCESS! CHD Forced FCC to Publish in Federal Register, Blocking It from Dismissing Lawsuits

By Dafna Tachover, CHD’s Director of 5G & Wireless Harms Project

On April 1st, 2020, the FCC finally published its December 4, 2019 “RF Order” (FCC 19-126) in the Federal Register. The Federal Register notice addresses the FCC’s outrageous refusal to update its RF exposure limits or reconsider whether outer ears should be treated differently than other extremities since users often place cell phones on the ear (Docket 13-84), the final rule amendments making it easier to prove compliance with the outdated rules (Docket 03-137). The publication in the Federal Register follows Children’s Health Defense’s (CHD) motion in its case against the FCC, CHD v FCC, to force the FCC to publish its decision. As a result, the FCC will have no basis to seek dismissal of CHD’s or the Environmental Health Trust’s (EHT) case and will likely prevent the FCC from being able to control venue – where the cases will be heard. The FCC much prefers the US Court of Appeals for the District of Columbia Circuit.

The Federal Register is part of the National Archives and Records Administration. It is the official “newspaper” of the federal government. Every decision, order, regulation or law must be published in the Register. The office annually compiles all current regulations into bound volumes of the Code of Federal Regulations (CFR). Most federal agency actions are not effective or final for judicial review purposes until they are published in the Federal Register.

On December 4, 2019 the FCC closed Docket 13-84 and released FCC 19-126. There were 2 relevant actions: a “Resolution of Notice of Inquiry” in ET Docket No. 13-84 regarding “Reassessment of Federal Communications Commission Radiofrequency Exposure Limits.” The FCC decided there is no evidence of harm from wireless technology and therefore, no need to review the RF safety guidelines. Most appalling was the FCC’s refusal to reconsider the impact on children or take into account that many users still place their cell phones right on their ear, and thereby receive more radiation exposure than the rules contemplate. CHD’s case (Petition for Review) against the FCC, claim the decision is arbitrary, capricious, not evidence based and an abuse of discretion. The FCC also released a “Second Report and Order” and Memorandum Opinion and Order” in ET Docket No. 03-137. This part amended the existing exposure guidelines to allow industry to even more prodigiously inflict harm on an unsuspecting and vulnerable public.

Under the Administrative Procedure Act, an injured party can sue the FCC within 60 days of the “date of public notice,” which is usually understood to be the date of publication in the Federal Register. However, 60 days after the FCC released its decision, the decision was not published in the Federal Register. To prevent any FCC argument that the window for review petitions closed on the 60^th day after the December 4, 2019 release Children’s Health Defense filed a case in the US Court of Appeals for the Ninth Circuit on February 2, 2020. The Environmental Health Trust filed a case as well, 2 days earlier, in the US Court of Appeals for the District of Columbia Circuit.

Under federal law, when cases are submitted in different courts against the same government agency’s decision, the cases are transferred to one court. The venue is typically determined by a multi-jurisdictional panel in what is referred to as the “lottery process.”

The FCC, however, devised a nefarious plan that would allow it to control timing and venue and even perhaps block judicial review. It purposefully delayed publication to prevent the lottery and push venue to the court it prefers – the DC Circuit – and potentially even obtain dismissal or a long delay until it finally got around to publishing notice. The FCC’s efforts to get the case out of the Ninth Circuit and before the DC Circuit strongly indicates FCC thinks it will do better there and would have a harder time defending the decision before the Ninth circuit.

On 2/12/2020 the FCC submitted a Motion to Transfer, asking the Ninth Circuit to transfer CHD’s case to the DC Circuit claiming that because EHT’s submitted the case two days before CHD, EHT has won a “race to the courthouse” and the cases should be heard in the DC Circuit Court. EHT submitted an Amicus Brief in support of the FCC motion to transfer our case to the DC circuit based on the same argument. CHD replied that the “race” never started because the “starting gun” (Federal Register publication) had never sounded, and, indeed, there was not supposed to be a race at all.

Scott McCollough, the attorney who leads CHD’s case together with Robert F. Kennedy Jr., saw through the FCC’s the FCC’s effort to game the rules, and quickly responded. CHD submitted a “Motion for Affirmative Relief and an Opposition to Motion to Transfer” on 2/18/20. CHD’s motion claimed the FCC was purposely withholding publication in the Federal Register. It further explained that under the courts’ procedural rules and statutes once Federal Register publication happens petitioners have a 10 day window to invoke the lottery process. This means that where the cases should be heard should not be based on a “race to the courthouse.” The Motion states:

“The Motion to Transfer is the FCC’s opening move in a game of “gotcha.” If the FCC prevails on its motion the Commission will promptly reverse course, abandon its apparent contention before this Court that the “Order” is presently reviewable, and tell the D.C. Circuit that since there has been no Federal Register publication both cases are “premature” and must be dismissed. If the D.C. Circuit agrees the FCC will succeed in completely immunizing the “Order” from any review whatsoever until the FCC gets around to publishing notice, if it ever does so.”

The FCC obviously realized its gambit would not work, so it finally stopped trying to delay and went forward with publication. CHD’s efforts won the day. We forced the FCC to publish in the Register; prevented the FCC from being able to dismiss the cases claiming they are premature; and ensured that the proper process to set venue is used: a Multi-Jurisdictional panel lottery process (rather than the FCC) should now decide which court will hear CHD’s & EHT’s cases. The 4/1/20 publication means the two review petitions will soon be able to move forward to consideration on the merits.

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