Cellular Phone Taskforce v. FCC and USA

• Decision Date: 05 April 1999
• Docket Number: Docket Nos. 97-4328
• Citation: 205 F.3d 82
• Parties: (2nd Cir. 2000) CELLULAR PHONE TASKFORCE, et al., Petitioners, CELLULAR TELECOMMUNICATIONS INDUSTRY ASSOCIATION, NATIONAL ASSOCIATION OF BROADCASTERS, ASSOCIATION FOR MAXIMUM SERVICE TELEVISION, INC., ELECTROMAGNETIC ENERGY ASSOCIATION, and AT&T WIRELESS SERVICES, INC., Intervenors, v. FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES OF AMERICA, Respondents. (L); 98-4003(Con); 98-4005(Con); 98-4025(Con); 98-4122(Con). August Term 1998
• Court: U.S. Court of Appeals — Second Circuit

Page 82

205 F.3d 82 (2nd Cir. 2000)

CELLULAR PHONE TASKFORCE, et al., Petitioners, CELLULAR TELECOMMUNICATIONS INDUSTRY ASSOCIATION, NATIONAL ASSOCIATION OF BROADCASTERS, ASSOCIATION FOR MAXIMUM SERVICE TELEVISION, INC., ELECTROMAGNETIC ENERGY ASSOCIATION, and AT&T WIRELESS SERVICES, INC., Intervenors, v. FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES OF AMERICA, Respondents.

Docket Nos. 97-4328(L); 98-4003(Con); 98-4005(Con); 98-4025(Con); 98-4122(Con).

August Term 1998

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued April 5, 1999

Decided: February 18, 2000

Petitioners appeal from two final orders of the Federal Communications Commission ("FCC"): (1) Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation, 11 F.C.C. Rcd. 15123 (1996); and (2) Procedures for Reviewing Requests for Relief from State and Local Regulations Pursuant to Section 332(c)(7)(B)(v) of the Communications Act of 1934, 12 F.C.C. Rcd. 13494 (1997). By these orders, the FCC promulgated guidelines for health and safety standards of radio frequency radiation, established streamlined procedures for meeting requirements under the National Environmental Policy Act for FCC licensees in compliance with the guidelines and retained for the FCC exclusive ability to regulate the relevant radio facility operations.

Affirmed.

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

JAMES R. HOBSON, Esq., Donelan, Cleary, Wood & Maser, P.C., Washington, DC, (Mark F. Wilson, Esq., The Communications Workers of America, Washington, DC, on the brief), for Ad-Hoc Association, The Communications Workers of America, AFL-CIO, CLC and CWA Local 7810, Petitioners,

JOHN E. SCHULZ, Esq., San Rafael, CA, for Cellular Phone Taskforce, Petitioners, JOEL MARCUS, Counsel, Federal Communications Commission, Washington, DC,(Joel I. Klein, Assistant Attorney General, Catherine G. O'Sullivan, Andrea Limmer, United States Attorneys, Christopher J. Wright, General Counsel, Daniel M. Armstrong, Associate General Counsel, C. Grey Pash, Jr., Counsel for the FCC Washington, DC, on the brief), for Respondents,

HOWARD J. SYMONS, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., Washington, DC, (Bruce D. Sokler, Esq., Sara F. Seidman, Michelle M. Mundt, on the brief; Douglas I. Brandon, Esq., AT&T Wireless Services, Inc., Michael F. Altschul, Cellular Telecommunications Industry Association, Washington, DC), for AT&T Wireless Services, Inc., and Cellular Telecommunications Industry Association, Intervenors, John I. Stewart, Jr., Esq. and William D. Wallace, Esq., Crowell & Moring, LLP, Washington, D.C., submitted a brief for Electromagnetic Energy Association, National Association of Broadcasters, and Association for Maximum Service Television, Inc., Intervenors,

Peter James Clines, Esq., New York, NY, submitted a brief for Gabriel Seymour, First Selectman, Town of Canaan, Connecticut, et al., Amici Curiae on behalf of Petitioners.

Before: WALKER, NEWMAN, and SACK, Circuit Judges.

JOHN M. WALKER, Circuit Judge:

Petitioners Cellular Phone Taskforce ("CPT") and Ad-Hoc Association of Parties Concerned About the Federal Communications Commission Radio Frequency Health and Safety Rules ("AHA"), joined by numerous other individuals and groups, appeal from two final opinions and orders in which the Federal Communications Commission (the "FCC") promulgated guidelines for health and safety standards of radio frequency ("RF") radiation, established streamlined procedures for meeting requirements under the National Environmental Policy Act for FCC licensees that are in compliance with the guidelines, and retained the exclusive ability to regulate the relevant radio facility operations. See Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation, 11 F.C.C. Rcd. 15123 (1996) ("First Order"); Procedures for Reviewing Requests for Relief from State and Local Regulations Pursuant to Section 332(c)(7)(B)(v) of the Communications Act of 1934, 12 F.C.C. Rcd. 13494 (1997) ("Second Order").

Affirmed.

BACKGROUND

In 1985, after seeking consensus among participating experts and after public notice and comment, the FCC adopted guidelines for human exposure to RF radiation from FCC-regulated transmitters and facilities. The guidelines were required by the National Environmental Policy Act ("NEPA"), 42 U.S.C. 4321 et seq., and the Council on Environmental Quality ("CEQ") regulations promulgated thereunder, see 40 C.F.R. 1500.1 et seq. In promulgating its rules, the FCC adopted the guidelines issued in 1982 by the American National Standards Institute ("ANSI"), a recognized standard-setting organization. See Biological Effects of Radiofrequency Radiation, 100 F.C.C.2d 543 (1985).

In November 1992, ANSI issued a more restrictive health standard for RF exposure¹ than its 1982 standard. The new ANSI standard prompted the FCC to propose updating its existing guidelines. See Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation, 8 F.C.C. Rcd. 2849 (1993). In the 1993 proposal that was sent out for notice and comment, the FCC noted that the 1992 ANSI standard was less restrictive than two other standards: those issued by the congressionally chartered National Council on Radiation Protection and Measurements ("NCRP"), and those proposed by the International Radiation Protection Association.

During the comment period, the FCC received submissions from, inter alia, the Environmental Protection Agency ("EPA"), the Food and Drug Administration ("FDA"), the Occupational Safety and Health Administration ("OSHA"), and the National Institute for Occupational Safety and Health ("NIOSH"). Ultimately, the FCC adopted guidelines that combined the NCRP standard with the ANSI standard (the "Guidelines"). These Guidelines -- part of the First Order that petitioners challenge in this case -- mostly incorporate the maximum permitted exposure ("MPE") limits suggested by the NCRP, together with certain other features of the ANSI standard. In particular, the FCC accepted ANSI's suggestion to exempt certain classes of facilities from having to file routine Environmental Assessments ("EAs") setting forth their compliance with the MPE limits in the Guidelines. The exempt category consists of tower-mounted telecommunications antennae 10 meters or higher above ground and rooftop antennae emitting less than 1000 watts of power. The FCC elected to exempt such facilities after determining that they pose no risk of exposing humans to RF radiation in excess of MPE levels.

Several parties filed petitions for reconsideration of the FCC's First Order. Some sought slightly stricter standards, and others sought to persuade the FCC to adopt the more restrictive ANSI standard wholesale. The FCC granted the petition for rehearing but declined to adopt an unmodified ANSI standard or to tighten its own guidelines, except in minor respects.

While the FCC was considering the proposed guidelines, Congress passed the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (the "Act"), several provisions of which affected the FCC's ongoing proceedings. In particular, the Act preempted state and local governments from regulating the placement, construction or modification of personal wireless service facilities on the basis of the health effects of RF radiation where the facilities would operate within levels determined by the FCC to be safe. See 47 U.S.C. 332(c)(7)(B)(iv). In the Second Order that is at issue in this case, the FCC announced, inter alia, a rule that prohibited state and local governments from regulating any personal wireless service facilities based upon perceived health risks posed by RF emissions as long as the facilities conformed to the FCC Guidelines regarding such emissions.

Petitioners' appeal raises a plethora of claims that can be grouped into five categories: Petitioner Cellular Phone Taskforce ("CPT") argues (1) that the Guidelines violate the Americans with Disabilities Act and the Rehabilitation Act; and both petitioners argue that (2) the FCC was arbitrary and capricious in enacting the Guidelines in violation of the Administrative Procedure Act, specifically 5 U.S.C. 706(2)(A); (3) the FCC violated NEPA by failing to prepare an environmental impact statement; (4) the FCC exceeded its powers when it prohibited state and local governments from regulating the operation of personal wireless service facilities that conformed to the FCC's RF standards; and (5) the same prohibition, found at 47 U.S.C. 332(c)(7)(B)(iv), is unconstitutional both on its face and as applied. We will consider each group of claims in turn.

DISCUSSION

I. Americans With Disabilities Act and Rehabilitation Act Claims

Petitioner CPT's claims that the Guidelines violate the Americans with Disabilities Act ("ADA"), see 42 U.S.C. 12101 et seq., and Rehabilitation Act, 29 U.S.C. 701 et seq., were not the subject of a final order by the FCC. While they were raised before a staff member, the Chief of the Office of Engineering and Technology, they were not presented to the Commission. Decisions of agency staff are not directly appealable final orders. Our review is limited to final orders of the FCC pursuant to 47 U.S.C. 402(a) and 28 U.S.C. 2342(a). See American Broad. Cos. v. FCC, 682 F.2d 25, 30 (2d Cir. 1982); see also 47 U.S.C. 155(c)(7) ("The filing of an application for review under this subsection shall be a condition precedent to judicial review of any order, decision, report, or action made or taken pursuant to a delegation under paragraph (1) of this subsection."); International Telecard Assoc. v. FCC, 166 F.3d 387, 387-88 (D.C. Cir. 1999) (per curiam).

While we have said that the foregoing exhaustion requirement is not inflexible, we generally do not permit petitioners to raise an issue for the first time on appeal without giving the Commission an opportunity to address it, particularly where...