The FCC’s recently-adopted First Report & Order (First R&O), Further Notice of Proposed Rulemaking (FNPRM), and Notice of Inquiry (NOI) on RF exposure limits and policies – initially released on March 29, 2013 – has now been officially published in the Federal Register, thus formally establishing the effective date of the new rules adopted by the FCC, as well as the relevant filing deadlines for comments and reply comments on additional rule changes being considered by the FCC regarding RF exposure limits and policies.
According to the Federal Register notice, the new rules adopted by the FCC in its First R&O (discussed below) will formally go into effect on August 5, 2013.
Comments on the FCC’s additional proposed rule changes and request for information will be due Tuesday, September 3, 2013, with reply comments due two months later on Friday, November 1, 2013.
The FCC’s new and proposed rules on RF exposure limits and policies will apply broadly to the use of radio spectrum in the United States, affecting commercial wireless providers, operators of private wireless networks (such as those used to support utility operations, transportation systems, etc.), broadcasters, and other owners and operators of radio transmitters. In addition, the FCC’s new and proposed rules will have both a direct and indirect impact on owners and occupants (including employers) of any physical structure or area where radio transmitters are located, including towers, utility poles, building rooftops, etc.
First Report & Order (First R&O)
The new RF exposure rules adopted in the First R&O arise out of a rulemaking proceeding conducted by the FCC back in 2003. For the most part, the new rules serve to clarify and expand on the FCC’s current RF rules. However, a number of these rules are also essentially interim measures until more detailed rules and procedures are established through the FNPRM (discussed below).
For network operators and infrastructure owners, the most significant aspect of the First R&O is the FCC’s clarification of its rules regarding responsibility for compliance with the RF exposure limits at joint-use/multiple-use sites with multiple transmitters operated by different parties. Specifically, the FCC stated that “all relevant co-located licensees are responsible for compliance” at a multiple-use site and that “all licensees that exceed five percent of the RF exposure limit at any non-compliant location are jointly and severally responsible, and the Commission may impose forfeiture liability [i.e., fines] on all such licensees.” (emphasis added)
Accordingly, the FCC stated that “it is [therefore] in the interest of these licensees to share information about power and other operating characteristics in order to achieve accurate representations of the RF environment. The Commission continues to encourage all site occupants, owners, leasers, and managers to cooperate in these endeavors, and we note that site user agreements are particularly useful and desirable to achieve this end.”
In the First R&O, the FCC also adopted new rules on mitigation of RF exposure, including labeling requirements related to occupational/controlled exposure from mobile and portable devices and the requirement to provide information and training on RF exposure to “individuals exposed as a consequence of their employment” to RF levels in the “occupational/controlled” range.
Other new RF rules adopted by the FCC clarify certain evaluation procedures and references for determining compliance with the RF exposure requirements. Among other things, the FCC will now use the online “Knowledge Database” (KDB) maintained by the FCC’s Office of Engineering and Technology to provide the public with guidance and general policy statements on acceptable procedures for evaluating compliance for portable and mobile wireless devices.
The rules described above will formally go into effect on August 5, 2013.
Further Notice of Proposed Rulemaking (FNPRM) and Notice of Inquiry (NOI)
As with the First R&O, the proposed rules now being considered by the FCC are based on the record developed in the agency’s 2003 rulemaking proceeding. In the FNPRM, is requesting comment on the following proposals:
New Power- and Distance-Based Exemptions: The FCC’s current rules identify particular categories of existing or proposed transmitting facilities for which licensees and applicants are required to conduct routine environmental evaluations to determine whether these facilities comply with the FCC’s RF guidelines. All other transmitting facilities are categorically excluded from routine evaluations. The FCC has requested comment on new power- and distance-based exemptions that are intended to streamline the process of determining whether a routine RF evaluation is necessary, including:
New exemption criteria for single RF sources based on power, frequency, and separation distance for all services using fixed, mobile, and portable transmitters. The FCC has requested comment on exemption criteria for both Maximum Permissible Exposure (MPE) limits for all services and Specific Absorption Rate (SAR) limits for fixed, mobile, and portable RF sources near a human body.
A method for calculating the new exemption criteria for multiple transmitters collocated on the same structure, such as a tower, building, or utility pole.
Post-Evaluation Mitigation Measures: The FCC has requested comment on proposed steps that licensees must take to ensure that exposure limits are not exceeded, including:
Specific training, access restriction, and signage requirements for fixed transmitter sites. Under the FCC’s proposal, the specific actions a licensee must take would depend on whether the RF radiation exceeds the general population exposure limit or the occupational exposure limit and, if so, by how much.
Joint responsibility for mitigation actions among all licensees at a shared site whose RF sources produce levels that exceed 5% of the applicable exposure limit. While the FCC emphasized that it is ultimately the licensees that are responsible, the FCC also requested comment on how to better encourage cooperation among property owners, managers, and licensees in the implementation of RF safety programs.
In addition to requesting comment on the specific proposals described above, the FCC is also seeking to develop a comprehensive and updated record on the adequacy of current RF exposure limits. The FCC has therefore issued along with its FNPRM a separate Notice of Inquiry (NOI) in which it is requesting comment generally on the following RF radiation issues:
Recommendations on alternative RF radiation limits, based on currently available research and in light of the increase in numbers and usage of fixed transmitters and portable and mobile devices.
Analysis of technical differences that have been raised in recent standards-setting activities and ongoing research.
How to better provide information to consumers and the public about RF exposure.
Approaches to controlling RF exposure, including the use of conventional exposure limits vs. other precautionary measures and differences in worldwide implementation of these philosophies.
How to improve the process of developing evaluation procedures.
The FCC’s current portable device separation distance policy when determining compliance.
Comments in response to the FNPRM and NOI will be due by Tuesday, September 3, with reply comments due by Friday, November 1, 2013.
The opinions expressed are those of the authors on the date noted above and do not necessarily reflect the views of Fish & Richardson P.C., any other of its lawyers, its clients, or any of its or their respective affiliates. This post is for general information purposes only and is not intended to be and should not be taken as legal advice. No attorney-client relationship is formed.