Here's What You Need to Know
The next generation of wireless technology—5G—is dramatically different from previous versions. The 5G technology will enable more data to be carried more quickly, but in many places relies on low waves of the electromagnetic spectrum. As a result, its signal does not travel as far requiring the construction of thousands of new cells to repeat the wireless signals to make 5G work. As companies like AT&T, Verizon and Sprint construct these new small cell wireless facilities in communities across the country, citizens are organizing to ensure this infrastructure is built in a way that protects their health and quality of life. As communities face a flood of applications for this new wireless infrastructure, many want to know what laws and regulations govern 5G. Here’s some information that may help.
Q: Who is responsible for setting health standards for new cell towers and other wireless infrastructure?
A: The Federal Communications Commission is responsible for setting health standards for radio frequency emissions. As long as proposed wireless service facilities comply with the FCC’s radio frequency standards, federal law prohibits state and local governments from regulating them based on “the environmental effects of radio frequency emissions.” 47 USC § 332(c)(7)(iv).
Q: What are the current FCC standards and are they adequate?
A: The FCC has set limits for radio frequency emissions, with specific limits for occupational exposure and general population exposure. These limits are found in the FCC’s regulations at 47 C.F.R. § 1.1301.
Unfortunately, the FCC has not updated its guidelines since 1996. Based on 30-year-old studies, today’s FCC limits were designed to protect only against the gross effects of heat or burning of human tissue. Since then, extensive research has raised concerns about other serious health effects. The FCC initiated a review of its limits in 2013, but had not completed it until early this week. On December 4, the FCC issued an order ending its inquiry into the adequacy of its radio frequency exposure limits without changing the limits.
Q: What can local governments do?
A: Local governments can condition approval for new 5G cell construction upon compliance with state and federal requirements for environmental review. While a local government cannot add new requirements for environmental review, it can require proof that the necessary federal review has been done. Given the mounting evidence that the FCC’s radio frequency limits are inadequate, such federal review should include an evaluation of the adequacy of these limits.
Q: What are the requirements for environmental review of new wireless infrastructure?
A: The National Environmental Policy Act (NEPA) requires an analysis of environmental impacts of major federal actions. Such actions include various types of federal approvals including for pipelines, oil and gas wells, dams and wireless infrastructure. If the impacts may be significant, the agency must prepare an Environmental Impact Statement. If an agency is unsure whether the impacts may be significant, it can prepare a shorter Environmental Assessment. Based on the Environmental Assessment, the agency will either move forward to prepare an EIS or instead prepare a Finding of No Significant Impact (FONSI). The only way to avoid an EA or an EIS is if the action qualifies for a categorical exclusion. While some new cell construction may qualify for a categorical exclusion (CE), the FCC has identified circumstances where a CE does not apply. For more information on the difference between an EIS and an EA, as well as information on the use and limits of categorical exclusions, see The Citizen’s Guide to the National Environmental Policy Act prepared by the White House Council on Environmental Quality.
Anyone wishing to construct a facility that uses an FCC license must submit an Environmental Assessment to the FCC or certification that the facility is categorically excluded. 47 C.F.R. § 1.1307. An Environmental Assessment is required if the proposed construction:
- Will be in a wilderness area or wildlife preserve (generally on federal land);
- Might affect threatened and endangered species or their habitat (Endangered Species Act);
- Might affect properties included or eligible for inclusion in the National Register of Historic Places or Indian religious and cultural sites;
- Will be in a flood plain;
- Will involve “significant changes in surface features” during construction (e.g., wetlands, water diversion, deforestation);
- Will be taller than 450 feet and so might affect migratory birds;
- Involves high intensity lighting in a residential area; or
- Would cause radio frequency emission exposure in excess of FCC-established limits.
A company seeking to build a wireless facility that falls into any of the above categories must obtain a Finding of No Significant Impact before building. “Building without following the requirements at 47 CFR 1.1301-1.1319 can constitute a violation of FCC rules and subject the constructing party to potential enforcement action,” the FCC said in its fact sheet on this topic.
Even when these conditions do not apply, the public can request and the FCC can order environmental review.
Q: What was the effect of NRDC’s lawsuit against the FCC regarding the siting of small cell wireless construction?
A: In March 2018, the FCC issued an order that attempted to eliminate environmental review requirements for small cell wireless facilities. NRDC challenged this order in court along with various other groups including the 19 Indian nations, the National Trust for Historic Preservation and the National Association of Tribal Historic Preservation Officers. While some of the construction might be called “small,” it can include new cell towers.
In August 2019, the U.S. Court of the Appeals for the District of Columbia struck down the FCC’s elimination of review under NEPA and the National Historic Preservation Act. No one appealed the decision to the U.S. Supreme Court. As a result, companies must comply with the environmental review requirements (listed above) that existed prior to the FCC’s order attempting to eliminate them.
As a result, companies wishing to construct new small cell wireless facilities must complete an Environmental Assessment or certify that the proposed facility is categorically excluded from review. Construction cannot proceed without such documentation.
Q: Where can I find out more about the environmental review requirements for new cell towers and other wireless infrastructure?
A: The FCC’s Wireless Telecommunications Bureau develops and executes policies and procedures for fast, fair licensing of all wireless services, from fixed microwave links to amateur radio to mobile broadband services. This bureau has developed various materials explaining the environmental reviews required for various types of wireless infrastructure.
Q: Is NRDC monitoring the effects of 5G on human health or the environment?
A: No. NRDC’s work is focused on protecting the right of each of us to have a say in government decisions that affect our lives and communities. We are not monitoring the effects of 5G on human health or the environment. Instead, we are working to hold the FCC accountable to its obligations under NEPA to ensure that the environmental effects of the activities it licenses are adequately evaluated and addressed.
Q: What groups are working on the health impacts of 5G?
A: Numerous citizen groups have organized across the country to address the impacts of 5G deployment. These groups include: Napa/Sonoma Neighborhood Association - CA; Our Town, Our Choice - San Francisco, CA; Stop 5G Bellingham - Bellingham, WA; Stop 5G Chicago - Chicago, IL; Safe Tech Forward - Detroit, MI; Pima County 5G Awareness Coalition - Tucson, AZ; Stop 5G Charlotte - Charlotte, NC; 5G Colorado Action - Denver, CO; ElectromagneticHealth.org - Boulder, CO. More than 100 groups aligned behind a set of principles regarding the implementation of new communications technologies have created a voluntary association, Americans for Responsible Technology.
The Environmental Health Trust collects information and helps bring this information to the attention of federal, state and local decision-makers. EHT carries out research, as well as providing policy and public educational materials.
Physicians for Safe Technology is another useful source of information.
Q: What can concerned citizens do?
A: Two immediate options are available to citizens concerned about the health and other environmental impacts of proposed new wireless infrastructure in their communities.
- First, citizens can contact the FCC’s Wireless Telecommunications Bureau and ask for the status of a company’s environmental compliance. Put your request in writing. Provide information about the specific proposals being considered in your community including the name of the company planning new construction. Ask if the company has provided the FCC with an Environmental Assessment for the proposed construction or certification that the construction qualifies for a categorical exclusion under NEPA. Explain your concerns about the adequacy of the existing FCC’s radio frequency guidelines.
- Second, submit comments to the FCC regarding the adequacy of its existing radio frequency guidelines. The FCC maintains an electronic system for accepting comments here. When commenting, make sure to include the number of the proceeding (13-84). Comments submitted to the FCC can be viewed here. Just this week, the FCC issued an order affirming the adequacy of its guidelines. Following publication in the Federal Register, the public will have 30 days to comment on this action.
Resources
For more information regarding what local governments can and cannot do related to construction of new small cell wireless infrastructure:
Grant Wilson, Policy Report – Small Cell Facilities in Boulder, CO: Planning Ahead for an Evolving Legal Regime (June 4, 2019). This analysis includes examples of what various local governments have done to regulate small cell wireless facilities.
For a collection of research and articles related to Electromagnetic Radiation Safety:
Dr. Joel Moskowitz, Electromagnetic Radiation Safety.
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As an environmental lawyer for over 25 years now, I have become intimately familiar with the workings of the Environmental Protection Agency and the Department of the Interior. I didn’t have occasion to watch what was happening across town at the Federal Communications Commission (FCC). Now I do. Here are ten reasons why you might want to also.
1. Created in 1934, the FCC regulates all interstate communications—both wired and wireless—as well as international communications originating or terminating in the United States. In the words of the Telecommunications Act of 1934, the FCC was established to provide “to all the people of the United States, without discrimination . . . a rapid, efficient, Nationwide, and world-wide wire and radio communication service with adequate facilities at reasonable charges.” 47 U.S.C. § 151. The law requires the FCC to serve the public interest.
2. Wireless communication touches every aspect of life. Smart phones are used by billions of people across the globe. As volume of data increases and delay decreases, wireless service is expanding beyond person-to-person communication. The possibility of the “Internet of Things” combined with Artificial Intelligence will impact every aspect of human life including transportation, education and health care.
3. The next generation of wireless technology—5G—is dramatically different from previous versions. Telecommunication is possible through use of the electromagnetic spectrum. 5G will enable more data to be carried more quickly, but its signal does not travel as far so a denser network of cells and other facilities is needed to deploy it.
Electromagnetic Spectrum - Source: General Accountability Office
5G promises to deliver dramatically more information at faster speeds enabling activities like driverless cars and remote surgery. The new technologies require the signal to be repeated more often – prompting companies such as AT&T, Verizon and Sprint to construct new towers and other infrastructure in communities across the country. Unfortunately, many parts of the country still do not have access to basic broadband services.
4. Five Commissioners sit on the FCC. The current Chairman Ajit Pai is pursuing an aggressive deregulatory agenda. He is joined by four other Commissioners—Michael O’Reilly, Brendan Carr, Jessica Rosenworcel and Geoffrey Starks. The positions each takes on issues ranging from net neutrality to health standards will shape the development and impacts of wireless technology.
5. In December 2017, the FCC eliminated “net neutrality” rules for broadband. These rules prohibit websites from blocking or throttling traffic, or from selling off “lanes” of traffic that will advantage some content players and disadvantage others. Over 50 parties including 22 states and the District of Columbia have opposed rescission of the rules in court. The U.S. Court of Appeals for the D.C. Circuit held oral argument in the case on February 1, 2019.
6. In March 2018, the FCC eliminated environmental and historical review for siting certain cell towers and other wireless facilities (FCC Order 18-30). Despite the license needed to provide wireless services, the FCC determined that there was no federal role in the construction of facilities needed to provide these services. In addition to NRDC, 19 tribes have challenged the FCC’s action along with the National Association of Tribal Historic Preservation Officers and the National Trust for Historic Preservation. On August 9, 2019, the D.C. Circuit Court of Appeals struck down the FCC's action finding that the Commission's attempted explanations for eliminating environmental and historical review "did not meet the standard of reasoned decision-making." The court's decision and briefs from the case can be found here. (18-1135)
7. In Order 18-30, the FCC restricted fees tribes charge Sprint and other telecom companies for reviewing the impacts on historic and cultural resources.
8. In September 2018, the FCC restricted fees cities charge Sprint and other telecom companies for siting towers and other wireless infrastructure in their communities. (FCC Order 18-133). Several lawsuits challenging the FCC’s action have been consolidated before the U.S. Court of Appeals for the Ninth Circuit. (Case No. 19-70146) Opening briefs were filed on June 10, 2019. Final briefs are scheduled to be filed by September 18.
9. In addition to restricting fees that cities can charge for building new wireless networks, Order 18-133 limited the time allowed for review of the proposed construction. The FCC imposed a so-called “shot clock” on cities and towns. If the local government has not acted within as few as 60 days on a construction permit, the project is deemed approved.
10. While the FCC has limited the review by others, the Commission at the same time has refused to update its own health and environmental guidelines. The Commission’s guidelines date from the 1990's. In 2012, the General Accountability Office found that the existing guidelines may not reflect current knowledge and recommended that the FCC formally reassess its guidelines. The FCC’s guidelines address only one aspect of potential harm from electromagnetic radiation—heat. The current guidelines do not address other ways in which exposure to increasing electromagnetic radiation from wireless communications can harm human health, as well as the natural systems around us on which all life depends.
The U.S. National Toxicology Program conducted rodent studies to help clarify the potential health hazards of radio frequency radiation (RFR). According to my NRDC colleague, Dr. Jennifer Sass, the results (which have been subjected to expert peer review and public comment) show that long-term high exposures to RFR used by 2G and 3G cell phones are associated with an elevated risk of cancer, particularly in heart and brain cells (NTP 2018). This is consistent with the previous hazard assessment of the World Health Organization’s cancer experts, which concluded that there was a possible link (Group 2B) to brain cancer in people with RFR exposures (IARC 2011). Both government agencies warn that the public should take pragmatic steps to reduce exposures (IARC Director, May 2011; NTP Fact Sheet, Nov 2018).
Montgomery County, Maryland has sued the FCC for failing to update its health and environmental guidelines. This case is consolidated in the Ninth Circuit with other challenges to Order 18-133 as discussed above. (19-70146)
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