By Laura H. Phillips and Patrick R. McFadden
On March 29, 3013, the Federal Communications Commission (FCC) released an item addressing the health and safety effects of radiofrequency (RF) emissions from devices that employ RF, either as a primary or as an incidental consequence of their operation, on humans. There are three parts to the item: an Order, a Further Notice of Proposed Rulemaking (FNPRM), and a Notice of Inquiry (NOI). The Order and the FNPRM relate to the FCC’s last RF emissions proceeding, opened in 2003. That proceeding implemented provisions of the National Environmental Policy Act, and addressed means of demonstrating compliance with the FCC’s RF exposure limits, but expressly did not address the question of whether the FCC’s "safe" exposure limit standards are appropriate. The Notice of Inquiry, on the other hand, opens an entirely new proceeding, inviting a discussion regarding whether the FCC’s exposure limits and policies should be comprehensively reassessed. Comments on both the FNPRM and NOI will be due 90 days after publication in the Federal Register, with reply comments due 150 days after publication.
Notice of Inquiry
The NOI opens a new proceeding seeking comment on available options for precautionary reductions in RF exposure, and possible improvements to the equipment authorization process as it pertains to emissions testing. While the FCC expresses confidence in its current standards, the opening of this new proceeding is a step that could well generate a significant factual record – with the potential for rule changes. Public interest groups or others concerned with real or imagined dangers associated with RF exposure may take this opportunity to propose revisions to the FCC’s current rules and practices that, if adopted, could have significant effects on the operations or costs faced by manufacturers and carriers. For example, the proceeding could easily consider more restrictive exposure limits, presenting challenges for device manufacturers or requiring costly mitigation approaches for fixed transmitter sites, such as cellular base stations. The proceeding could also result in new labeling or consumer awareness campaigns, or other compliance burdens. These outcomes, in turn, could result in higher prices for consumers as well as higher government procurement costs for devices subject to the rules. One possible upside of federal regulation in this area could be that it preempts more burdensome local attempts to regulate in this area, although the NOI does not squarely address that possibility.
The NOI seeks comment in five specific areas:
- Exposure Limits. The NOI asks whether the current RF exposure limits are appropriate or should be adjusted. The NOI requests analyses of technical differences raised in standards-setting activities and ongoing research, such as partial-body and whole-body averaging of exposure, the averaging area, and the averaging time. The NOI notes that, while the FCC’s current rules do not include limits on peak pulsed RF fields, different standards-setting bodies have adopted differing standards for such fields, and the NOI seeks comment on whether limits addressing this would be appropriate. The NOI also seeks comment on possible contact current limits, as well as approaches to avoid RF burns due to contact and induced currents. The NOI also seeks comment on whether the FCC should adopt rules that explicitly control exposure in frequency ranges outside the current 100 KHz to 100 GHz range where rules now apply. Finally, the NOI seeks comment on whether the current averaged specific absorption rate (SAR) limits are sufficiently protective for the more localized exposure that may occur near electrically conductive objects implanted in the body, or on the body, such as eyeglasses or jewelry.
- Consumer Information. The NOI seeks comment on what additional information the FCC should develop to make available to consumers regarding RF exposure, as well as the format for any additional information. The NOI also seeks comment on whether the FCC should require disclosures of specific absorption rate (SAR) values or other exposure data in a standard format, in manuals, at point-of-sale, or on websites – but does not address the potential preemptive effect of any such rules on any local ordinances requiring warnings or disclosures.
- Exposure Reduction Strategies. The NOI seeks comment on whether it would be appropriate or feasible to impose additional precautionary restrictions on device design or the siting of fixed transmitter facilities to reduce exposure. The FCC notes that other countries have implemented extra precautionary limits for fixed transmitters that are far below what prevailing scientifically-based values might otherwise indicate. However, the NOI notes that the FCC would be guided by other countries’ standards or practices only to the extent that it has confidence in that research and analysis, as well as the tangible benefits they might provide. The FCC notes that there are trade-offs to be considered in imposing extra precautionary aspects of system design – for example, higher mounting of antennas or taller towers could increase costs or have greater environmental effects. Beyond precautionary measures involving a reduction in time-averaged SAR, the NOI seeks comment on the desirability of other precautionary measures, such as limitations on characteristics including extremely low frequency fields, peak pulsed RF fields, or modulation.
- Evaluation. The NOI also seeks comment on how the FCC’s process for developing testing standards might be improved. For example, there are pros and cons to evaluations that are based on measurements as opposed to more straightforward computational methods, as well as on how SAR evaluation methods should be supported for fixed and mobile RF sources. The NOI seeks comment on whether material in the FCC’s current non-binding policy statements on the procedures for demonstrating compliance with the RF safety rules should be incorporated into the rules as mandatory practice.
- Proximity Restriction and Disclosure Requirements for Portable RF Sources. Finally, the NOI seeks comment on the FCC’s current portable device separation distance policy when determining compliance. Since 2001, a non-binding FCC policy statement has recommended maintaining a body-worn device separation distance up to 2.5 centimeters during testing of consumer portable devices, since accessories such as holsters would normally be worn to secure devices to the body and they would normally be expected to maintain this distance. The FCC notes that currently, accessories such as holsters have become a matter of consumer choice, and are not always supplied with portable devices. Rather, devices may be placed in a shirt or pants pocket, and used with a low power Bluetooth headset (which may reduce exposure to the head) without the consumer appreciating that the device is still transmitting. The FCC states that its policies have evolved, and that it has established evaluation procedures for newer technologies with reduced body-worn separation distances, but notes that there could be circumstances where the accepted test configuration may not reflect actual use. The NOI seeks comment as to what steps the FCC should take relative to its policies for testing of devices on the basis of an expectation of some separation from the body – including whether it would be appropriate to consider zero separation in testing devices.
The Order resolves outstanding issues, largely technical or semantic, regarding RF testing and compliance evaluation procedures and references to determine compliance with the FCC’s existing exposure limits. The rule changes the FCC adopts are intended to provide applicants with alternative methods for demonstrating compliance. In particular, the FCC allows applicants to demonstrate that they comply with the exposure rules based on SAR in lieu of maximum permissible exposure for fixed and mobile transmitters (SAR evaluation is already required for portable devices). The Order amends the rules to reference the FCC’s Knowledge Database, an online resource providing technical guidance documents, instead of an informational document previously referenced. The Order also reclassifies the outer ear as an extremity, thus making it subject to the same RF exposure limit currently applicable to, for example, hands.
Exposure limits can be policed not only by evaluation procedures, but also by post-evaluation procedures, such as labels, signs, barriers, or enforcement, to ensure exposure limits are not exceeded. The FCC terms these post-evaluation procedures “mitigation matters,” and the Order amends the FCC’s rules concerning such mitigation in a number of respects. For example, the Order amends the FCC’s rules to allow the use of labels on products or equipment as a means of making workers aware of the potential for exposure from portable and mobile devices used in an occupational setting. The FCC’s current rules allow for higher exposure limits in occupational or controlled settings where individuals are “fully aware of” and can “exercise control” over their exposure. The Order provides more clarity concerning these concepts, including to specify that individuals may be made fully aware of exposure by receiving written and/or verbal information. Additionally, with respect to the apportionment of responsibility among licensees operating at fixed sites with multiple transmitters, the Order clarifies that failure to comply with the FCC’s rules can result in penalties for all site occupants that contribute significantly to exposure – not just the newest occupant or the occupant that contributes most significantly.
Further Notice of Proposed Rulemaking
The FNPRM seeks comment on proposals to revise and harmonize the criteria for determining whether devices comply with existing RF exposure limits. The FNPRM proposes exemptions based on power, frequency and separation distance (the minimum distance from the radiating structure of the transmitting antenna to any area accessible to a worker or member of the public) to clarify whether preparation of a routine RF evaluation is even necessary. The FNPRM also proposes to provide further guidance on specific mitigation matters, such as proximity restriction and disclosure requirements for fixed RF sources. In particular, the FNPRM proposes to clarify the applicability of FCC RF exposure limits to transient, untrained individuals in controlled environments. It also proposes specific training, access restriction, and signage requirements for fixed transmitter sites, based on a combination of current industry standards, and proposes to define exposure categories which will require different mitigation actions based on the level of exposure in an area. Specifically, the FCC proposes the following categories and associated disclosure actions:
- Category One (below general population exposure limit): no signs or access controls are required; optionally a green “INFORMATION” sign may make the public aware that a transmitting source is nearby that is compliant with FCC exposure limits.
- Category Two (exceeds general population limits, but below occupational exposure limit): signs and access control, with blue signs signaling “NOTICE” and providing specific information.
- Category Three (exceeds occupation exposure limits by less than ten times): yellow signs signaling “CAUTION,” as well as controls or indicators such as chains, railings, or contrasting paint, surrounding the area in which the exposure limit is exceeded.
- Category Four (exceeds occupation exposure limits by more than ten times): orange “WARNING” signs, or red “DANGER” signs where immediate and serious injury will occur, and the optional use of personal protection equipment and other restrictions.
Plainly, the FCC is undertaking this RF exposure rule review and its recent proceeding on test lab certification so as to refresh the record with respect to health and safety implications of RF exposure. How the FCC proceeds to weigh the communications industry’s preference for certainty with any presentations the agency receives introducing new evidence that RF emissions rules and procedures should be enhanced will be critical to the outcome of the proceeding.