IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
ENVIRONMENTAL HEALTH TRUST, CONSUMERS FOR SAFE CELL PHONES, ELIZABETH BARRIS, AND THEODORA SCARATO, Petitioners, v. THE FEDERAL COMMUNICATIONS COMMISSION, and THE UNITED STATES OF AMERICA, Respondents. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
PETITION FOR REVIEW
Pursuant to 47 U.S.C. § 402(a), 28 U.S.C. §§ 2342(1) and 2344, Fed. R. Civ. P. 15(a), and Local Rule 15, the Environmental Health Trust, Consumers for Safe Cell Phones, Elizabeth Barris, and Theodora Scarato (“Petitioners”) hereby petition the Court for review of the
Resolution of Notice of Inquiry, Second Report and Order
and the
Memorandum Opinion and Order
of the Federal Communications Commission (“FCC” or “Commission”), addressing
Proposed Changes in the Commission’s Rules Regarding Human Exposure to Radiofrequency
2
Electromagnetic Fields
, ET Docket No. 03-137, and
Reassessment of Federal Communications Commission Radiofrequency Exposure Limits and Policies,
ET Docket No. 13-84, in FCC 19-126 (“
Order
”). The
Order
, a copy of which is attached as Exhibit A to this petition, was released on December 4, 2019. This Court has jurisdiction pursuant to 28 U.S.C. § 2342(1). Venue is proper in this Court pursuant to 28 U.S.C. § 2343. Petitioners each actively participated in the agency proceedings, including filing public comments. Petitioner Environmental Health Trust is a non-profit educational and research organization. Petitioner Consumers for Safe Cell Phones is a non-profit educational and advocacy organization. Petitioners Liz Barris and Theodora Scarato are individuals. Petitioners’ substantial interests are negatively affected by the
Order
. In the
Order
, the Commission: (1) has improperly terminated a Notice of Inquiry begun in 2013 to review, update, and amend its emission exposure limits for radiofrequency (RF) radiation emitted by telecommunications devices and facilities, including but not limited to cell phones and cell phone towers and transmitters; (2) has improperly revised the criteria for determining when a licensee is exempt from its RF exposure evaluation criteria and the methods that RF equipment operators can use to mitigate the risk of excess exposure to the public and to workers; and (3) has improperly denied a petition for reconsideration of the Commission’s finding, and
3 otherwise improperly rejected public comments, that the pinnae (outer ears) should be treated like other extremities for purposes of determining compliance with the RF emission exposure limits. The
Order
exceeds the Commission’s statutory authority and poses significant risks to the public health, safety, and security. Petitioners seek review of the
Order
under federal law, including but not limited to the Administrative Procedure Act, 5 U.S.C. § 701
et seq.
, the Communications Act of 1934, as amended, 47 U.S.C. 151
et seq.
, the FCC’s regulations promulgated thereunder, the National Environmental Policy Act, as amended, 42 U.S.C. § 4321
et seq.
, and the Council on Environmental Quality’s and FCC’s regulations promulgated thereunder. Petitioners seek a determination by this Court that the Order: (i) violates the above-referenced statutes and regulations; (ii) is arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with the law; (iii) is in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (iv) was adopted without observance of procedure required by law; and (v) is otherwise contrary to law. Accordingly, Petitioners respectfully request that this Court hold unlawful, vacate, enjoin, and set aside the
Order
, and grant such other relief as the Court may deem appropriate.