USCA Case #20-1025 Document #1910111 Filed: 08/13/2021 Page 1 of 44
`United States Court of Appeals
`Decided August 13, 2021
`Argued January 25, 2021
`No. 20-1025
`Consolidated with 20-1138
`On Petitions for Review of an Order
`of the Federal Communications Commission
`W. Scott McCollough argued the cause for petitioners.
`With him on the joint briefs were Edward B. Myers and Robert
`F. Kennedy, Jr.
`Sharon Buccino was on the brief for amici curiae Natural
`Resources Defense Council and Local Elected Officials in
`support of petitioners.


`USCA Case #20-1025 Document #1910111 Filed: 08/13/2021 Page 2 of 44
`Dan Kleiber and Catherine Kleiber, pro se, were on the
`brief for amici curiae Dan and Catherine Kleiber in support of
`James S. Turner was on the brief for amicus curiae
`Building Biology Institute in support of petitioners.
`Stephen L. Goodman was on the brief for amicus curiae
`Joseph Sandri in support of petitioners.
`Ashley S. Boizelle, Deputy General Counsel, Federal
`Communications Commission, argued
`the cause
`respondents. With her on the brief were Jonathan D.
`Brightbill, Principal Deputy Assistant Attorney General at the
`time the brief was filed, U.S. Department of Justice, Eric
`Grant, Deputy Assistant Attorney General at the time the brief
`was filed, Jeffrey Beelaert and Justin Heminger, Attorneys,
`Thomas M. Johnson, Jr., General Counsel at the time the brief
`was filed, Federal Communications Commission, Jacob M.
`Lewis, Associate General Counsel, and William J. Scher and
`Rachel Proctor May, Counsel. Richard K. Welch, Deputy
`Associate General Counsel, entered an appearance.
`Opinion for the Court filed by Circuit Judge WILKINS.
`Opinion dissenting in part filed by Circuit Judge
`WILKINS, Circuit Judge: Environmental Health Trust and
`several other groups and individuals petition for review of an
`order of the Federal Communications Commission (“the
`Commission”) terminating a notice of inquiry regarding the


`USCA Case #20-1025 Document #1910111 Filed: 08/13/2021 Page 3 of 44
`adequacy of the Commission’s guidelines for exposure to
`radiofrequency radiation. The notice of inquiry requested
`comment on whether the Commission should initiate a
`rulemaking to modify its guidelines. The Commission
`concluded that no rulemaking was necessary. Petitioners argue
`that the Commission violated the requirements of the
`Administrative Procedure Act by failing to respond to
`significant comments. Petitioners also argue that the National
`Environmental Policy Act required the Commission to issue an
`environmental assessment or environmental impact statement
`regarding its decision to terminate its notice of inquiry.
`We grant the petitions in part and remand to the
`Commission. The Commission failed to provide a reasoned
`explanation for its determination that its guidelines adequately
`protect against
`the harmful effects of exposure
`radiofrequency radiation unrelated to cancer.
`The Federal Communications Commission regulates
`various facilities and devices that transmit radio waves and
`microwaves, including cell phones and facilities for radio, TV,
`and cell phone communications. 47 U.S.C. §§ 301, 302a(a);
`see EMR Network v. FCC, 391 F.3d 269, 271 (D.C. Cir. 2004).
`Radio waves and microwaves are forms of electromagnetic
`that are collectively described by
`“radiofrequency” (“RF”). Office of Eng’g & Tech., Fed.
`Commc’ns Comm’n, OET Bulletin No. 56, Questions and
`Answers about Biological Effects and Potential Hazards of
`Radiofrequency Electromagnetic Fields 1 (4th ed. Aug. 1999).
`The phenomenon of radio waves and microwaves moving
`through space is described as “RF radiation.” Id.
`We often associate the term “radiation” with the term
`“radioactivity.” “Radioactivity,” however, refers only to the


`USCA Case #20-1025 Document #1910111 Filed: 08/13/2021 Page 4 of 44
`emission of radiation with enough energy to strip electrons
`from atoms. Id. at 5. That kind of radiation is called “ionizing
`radiation.” Id. It can produce molecular changes and damage
`biological tissue and DNA. Id. Fortunately, RF radiation is
`“non-ionizing,” meaning that it is not sufficiently energetic to
`strip electrons from atoms. Id. It can, however, heat certain
`kinds of materials, like food in your microwave oven or, at
`sufficiently high levels, human body tissue. Id. at 6–7.
`Biological effects that result from the heating of body tissue by
`RF energy are referred to as “thermal” effects, and are known
`to be harmful. Id. Exposure to lower levels of RF radiation
`might also cause other, “non-thermal” biological effects. Id. at
`8. Whether it does, and whether such effects are harmful, are
`subjects of debate. Id.
`The National Environmental Policy Act (“NEPA”) and its
`implementing regulations require federal agencies to “establish
`procedures to account for the environmental effects of [their]
`proposed actions.” Am. Bird Conservancy, Inc. v. FCC, 516
`F.3d 1027, 1032 (D.C. Cir. 2008) (per curiam). If an agency
`proposes a “major Federal action[]”
`that stands
`“significantly affect[] the quality of the human environment,”
`the agency must prepare an environmental impact statement
`(“EIS”) that examines the adverse environmental effects of the
`proposed action and potential alternatives. 42 U.S.C. §
`4332(C). Not every agency action, however, requires the
`preparation of a full EIS. Theodore Roosevelt Conservation
`P’ship v. Salazar, 616 F.3d 497, 503 (D.C. Cir. 2010). If it is
`unclear whether a proposed action will “significantly affect[]
`the quality of the human environment,” 42 U.S.C. § 4332(C),
`responsible agency may prepare a more
`environmental assessment (“EA”). See 40 C.F.R. § 1501.5(a).
`An EA serves to “[b]riefly provide sufficient evidence and
`analysis for determining whether to prepare an [EIS] or a
`finding of no significant impact.” 40 C.F.R. § 1501.5(c)(1).


`USCA Case #20-1025 Document #1910111 Filed: 08/13/2021 Page 5 of 44
`Additionally, an agency may use “categorical exclusions” to
`“define categories of actions that normally do not have a
`significant effect on the human environment and therefore do
`not require preparation of an environmental impact statement.”
`40 C.F.R. § 1500.4(a); see also 40 C.F.R. § 1501.4(a).
`To fulfill its obligations under NEPA, the Commission has
`promulgated guidelines for human exposure to RF radiation.
`Cellular Phone Taskforce v. FCC, 205 F.3d 82, 87 (2d Cir.
`2000). The guidelines set limits for RF exposure. Before the
`Commission authorizes the construction or use of any wireless
`facility or device, the applicant for authorization must
`determine whether the facility or device is likely to expose
`people to RF radiation in excess of the limits set by the
`guidelines. 47 C.F.R. § 1.1307(b). If the answer is yes, the
`applicant must prepare an EA regarding the likely effects of the
`Commission’s authorization of the facility or device. Id.
`Depending on the contents of the EA, the Commission may
`require the preparation of an EIS, and may subject approval of
`the application to a full vote by the Commission. Office of
`Eng’g & Tech., Fed. Commc’ns Comm’n, OET Bulletin No.
`65, Evaluating Compliance with FCC Guidelines for Human
`Exposure to Radiofrequency Electromagnetic Fields 6 (ed. 97-
`01, Aug. 1997). If the answer is no, the applicant is generally
`not required to prepare an EA. 47 C.F.R. § 1.1306(a).
`The Commission last updated its limits for RF exposure in
`1996. Resolution of Notice of Inquiry, Second Report and
`Order, Notice of Proposed Rulemaking, and Memorandum
`Opinion and Order, 34 FCC Rcd. 11,687, 11,689–90 (2019)
`(“2019 Order”); see also Telecommunications Act of 1996,
`Pub. L. No. 104-104, § 704(b), 110 Stat. 56, 152 (directing the
`Commission to “prescribe and make effective rules regarding
`the environmental effects of radio frequency emissions” within
`180 days). The limits are based on standards for RF exposure


`USCA Case #20-1025 Document #1910111 Filed: 08/13/2021 Page 6 of 44
`the American National Standards
`issued by
`Committee (“ANSI”), the Institute of Electrical and Electronic
`Engineers, Inc. (“IEEE”), and the National Council on
`Radiation Protection and Measurements (“NCRP”). In re
`Guidelines for Evaluating the Environmental Effects of
`Radiofrequency Radiation, 11 FCC Rcd. 15,123, 15,134–35,
`15,146–47 (1996). The limits are designed to protect against
`“thermal effects” of exposure to RF radiation, but not “non-
`thermal” effects. EMR Network, 391 F.3d at 271.
`In March 2013, the Commission issued a notice of inquiry
`the adequacy of
`its 1996 guidelines.
` See
`Reassessment of Radiofrequency Exposure Limits & Policies,
`Notice of Inquiry, 28 FCC Rcd. 3,498 (2013) (“2013 Notice of
`Inquiry”). The Commission divided its notice of inquiry into
`five sections. In the first section, it sought comment on the
`propriety of its exposure limits for RF radiation, particularly as
`they relate to device use by children. Id. at 3,575–80. In the
`second section, the Commission sought comment on how to
`better provide information to consumers and the public about
`exposure to RF radiation and methods for reducing exposure.
`Id. at 3,580–82. In the third section, the Commission sought
`comment on whether it should impose additional precautionary
`restrictions on devices and facilities that are unlikely to expose
`people to RF radiation in excess of the limits set by the
`Commission’s guidelines. Id. at 3,582–85. In the fourth and
`fifth sections, the Commission sought comment on whether it
`should change its methods for determining whether devices and
`facilities comply with the Commission’s guidelines. Id. at
`The Commission explained that it was issuing the notice
`of inquiry in response to changes in the ubiquity of wireless
`devices and in scientific standards and research since 1996. Id.
`at 3,570. Specifically, the Commission noted that the IEEE had


`USCA Case #20-1025 Document #1910111 Filed: 08/13/2021 Page 7 of 44
`“published a major revision to its RF exposure standard in
`2006.” Id. at 3,572. The Commission also noted that the
`International Commission on Non-Ionizing Radiation
`Protection had published RF exposure guidelines in 1998 that
`differed somewhat from the Commission’s 1996 guidelines,
`and was likely to release a revision of those guidelines “in the
`near future.” Id. at 3,573. And the Commission noted that the
`International Agency for Research on Cancer (“IARC”) had
`classified RF radiation as possibly carcinogenic to humans, and
`was likely to release a detailed monograph regarding that
`classification prior to the resolution of the notice of inquiry. Id.
`at 3,575 & n.385. The Commission invited public comment on
`all of these developments, but underscored that it would “work
`closely with and rely heavily—but not exclusively—on the
`guidance of other federal agencies with expertise in the health
`field.” Id. at 3,571.
`In December 2019, the Commission issued a final order
`resolving its 2013 notice of inquiry by declining to undertake
`any of the changes contemplated in the notice of inquiry. See
`2019 Order, 34 FCC Rcd. at 11,692–97.
`In January 2020, Petitioners Environmental Health Trust,
`Consumers for Safe Cell Phones, Elizabeth Barris, and
`Theodora Scarato timely petitioned this Court for review of the
`Commission’s 2019 final order. In February 2020, Petitioners
`Children’s Health Defense, Michele Hertz, Petra Brokken, Dr.
`David O. Carpenter, Dr. Paul Dart, Dr. Toril H. Jelter, Dr. Ann
`Lee, Virginia Farver, Jennifer Baran, and Paul Stanley, M.Ed.,
`timely petitioned the Ninth Circuit for review of the same
`order, and the Ninth Circuit transferred their petition to this
`Court pursuant to 28 U.S.C. § 2112. This Court consolidated
`the petitions. We have jurisdiction under 47 U.S.C. § 402(a)
`and 28 U.S.C. § 2342(1).


`USCA Case #20-1025 Document #1910111 Filed: 08/13/2021 Page 8 of 44
`Petitioners challenge the 2019 final order under NEPA and
`the Administrative Procedure Act (“APA”). We begin with the
`Petitioners argue that the order is arbitrary and capricious
`and therefore must be set aside under 5 U.S.C. § 706(2)(A) for
`the following reasons: (1) the order fails to acknowledge
`evidence of negative health effects caused by exposure to RF
`radiation at levels below the limits set by the Commission’s
`1996 guidelines, including evidence of cancer, radiation
`sickness, and adverse effects on sleep, memory, learning,
`perception, motor abilities, prenatal and reproductive health,
`and children’s health; (2) the order fails to respond to
`comments concerning environmental harm caused by RF
`radiation; (3) the order fails to discuss the implications of long-
`term exposure to RF radiation, exposure to RF pulsation or
`modulation (two methods of imbuing radio waves with
`implications of
`developments that have occurred since 1996, including the
`ubiquity of wireless devices and Wi-Fi, and the emergence of
`“5G” technology; (4) the order fails to adequately explain the
`Commission’s refusal to modify its procedures for determining
`whether cell phones comply with its RF limits; and (5) the
`to various “additional
`considerations,” Pet’rs’ Br. at 84.
`Before discussing these arguments, and the Commission’s
`responses to them, we clarify our standard of review. The
`arbitrary and capricious standard of the Administrative
`Procedure Act “encompasses a range of levels of deference to
`the agency.” Am. Horse Prot. Ass’n v. Lyng, 812 F.2d 1, 4
`(D.C. Cir. 1987). We completely agree with the dissenting


`USCA Case #20-1025 Document #1910111 Filed: 08/13/2021 Page 9 of 44
`opinion that the Commission’s order is entitled to a high degree
`of deference, both because it is akin to a refusal to initiate a
`rulemaking, see id. at 4–5, and because it concerns highly
`technical determinations of the kind courts are ill-equipped to
`second-guess, see Am. Radio Relay League, Inc., v. FCC, 524
`F.3d 227, 233 (D.C. Cir. 2008). So as to the governing law, the
`dissenting opinion and we are on the same page. Nevertheless,
`the Commission’s decision to terminate its notice of inquiry
`must be “reasoned” if it is to survive arbitrary and capricious
`review. See Am. Horse, 812 F.2d at 5; Am. Radio, 524 F.3d at
`241. As with other agency decisions not to engage in
`rulemaking, we will overturn the Commission’s decision if
`there is “compelling cause, such as plain error of law or a
`fundamental change in the factual premises previously
`considered by the agency[.]” Flyers Rights Educ. Fund, Inc. v.
`Fed. Aviation Admin., 864 F.3d 738, 743 (D.C. Cir. 2017)
`(quoting WildEarth Guardians v. EPA, 751 F.3d 649, 653
`(D.C. Cir. 2014)). When an agency in the Commission’s
`position is confronted with evidence that its current regulations
`are inadequate or the factual premises underlying its prior
`judgment have eroded, it must offer more to justify its decision
`to retain its regulations than mere conclusory statements. See
`Am. Horse, 812 F.2d at 6; Am. Radio, 524 F.3d at 241. Rather,
`the agency must provide “assurance that [it] considered the
`relevant factors,” and it must provide analysis that follows “a
`discernable path to which the court may defer.” Am. Radio,
`524 F.3d at 241.
`Under this highly deferential standard of review, we find
`the Commission’s order arbitrary and capricious in its failure
`to respond to record evidence that exposure to RF radiation at
`levels below the Commission’s current limits may cause
`negative health effects unrelated to cancer. (As we explain


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`below, we find that the Commission offered an adequate
`explanation for its determination that exposure to RF radiation
`at levels below the Commission’s current limits does not cause
` That
`failure undermines
`the Commission’s
`conclusions regarding the adequacy of its testing procedures,
`particularly as they relate to children, and its conclusions
`regarding the implications of long-term exposure to RF
`radiation, exposure to RF pulsation or modulation, and the
`implications of technological developments that have occurred
`since 1996, all of which depend on the premise that exposure
`to RF radiation at levels below its current limits causes no
`negative health effects.
` Accordingly, we find
`conclusions arbitrary and capricious as well. Finally, we find
`the Commission’s order arbitrary and capricious in its complete
`failure to respond to comments concerning environmental
`harm caused by RF radiation.
`Petitioners point to multiple studies and reports, which
`were published after 1996 and are in the administrative record,
`purporting to show that RF radiation at levels below the
`Commission’s current limits causes negative health effects
`unrelated to cancer, such as reproductive problems and
`neurological problems that span from effects on memory to
`motor abilities. See, e.g., J.A. 3,068 (BIOINITIATIVE WORKING
`Carpenter eds., 2012) (describing evidence that human sperm
`and their DNA are damaged by low levels of RF radiation));
`J.A. 5,243 (Igor Yakymenko et al., Oxidative Mechanisms of
`Biological Activity of Low-Intensity Radiofrequency Radiation,
`(2015)); J.A. 5,259–69 (Henrietta Nittby et al., Increased
`Blood-Brain Barrier Permeability in Mammalian Brian 7 Days
`After Exposure to the Radiation from a GSM-900 Mobile
`Phone, 16 PATHOPHYSIOLOGY 103 (2009)); J.A. 5,320–68
`(Henry Lai, A Summary of Recent Literature on


`USCA Case #20-1025 Document #1910111 Filed: 08/13/2021 Page 11 of 44
`Neurobiological Effects of Radiofrequency Radiation, in
`Markov ed., 2018)); J.A. 5,994–6,007 (Milena Foerster et al.,
`A Prospective Cohort Study of Adolescents’ Memory
`Performance and Individual Brain Dose of Microwave
`Radiation from Wireless Communication, 126 ENV’T HEALTH
`PERSPS. 077007 (July 2018)). Petitioners also point to
`approximately 200 comments submitted by individuals who
`advised the Commission that either they or their family
`members suffer from radiation sickness, “a constellation of
`mainly neurological symptoms that manifest as a result of RF[]
`exposure.” Pet’rs’ Br. at 30–31, 30 n.99.
`its order adequately
`The Commission argues
`responded to this evidence by citing the Food and Drug
`Administration (“FDA”)’s determination that exposure to RF
`radiation at levels below the Commission’s current limits does
`not cause negative health effects. The order cites three
`statements from the FDA. First, the order cites an FDA
`webpage titled “Do cell phones pose a health hazard?” that, as
`of December 4, 2017, stated that “[t]he weight of scientific
`evidence has not linked cell phones with any health problems.”
`2019 Order, 34 FCC Rcd. at 11,692–93, 11,693 n.31. Second,
`the order cites a February 2018 statement from the Director of
`the FDA’s Center for Devices and Radiological Health
`advising the public that
`As part of our commitment to protecting the
`public health, the FDA has reviewed, and will
`continue to review, many sources of scientific
`and medical evidence related to the possibility
`of adverse health effects from radiofrequency
`energy exposure in both humans and animals
`and will continue to do so as new scientific data
`are published. Based on our ongoing evaluation


`USCA Case #20-1025 Document #1910111 Filed: 08/13/2021 Page 12 of 44
`of the issue, the totality of the available
`scientific evidence continues to not support
`adverse health effects in humans caused by
`radiofrequency energy exposure limits.
`Id. at 11,695 n.42. Third, the order cites an April 2019 letter
`from the Director of the FDA’s Center for Devices and
`Radiological Health that does not discuss non-cancer-related
`health effects but instead addresses a 2018 study by the
`National Toxicology Program that found that exposure to RF
`radiation emitted by cell phones may cause cancer in rodents.
`2019 Order, 34 FCC Rcd. at 11,692 & n.28. The letter explains
`that “[a]s a part of our ongoing monitoring activities, we have
`reviewed the results and conclusions of the recently published
`rodent study from the National Toxicology Program in the
`context of all available scientific information, including
`epidemiological studies, and concluded that no changes to the
`current standards are warranted at this time.” Letter from
`Jeffrey Shuren, M.D., J.D., Dir., Ctr. for Devices &
`Radiological Health, Food & Drug Admin., Dep’t of Health &
`Hum. Servs., to Julius Knapp, Chief, Off. Of Eng’g & Tech.,
`FCC (April 24, 2019).
`We do not agree that these statements provide a reasoned
`explanation for the Commission’s decision to terminate its
`notice of inquiry. Rather, we find them to be of the conclusory
`variety that we have previously rejected as insufficient to
`sustain an agency’s refusal to initiate a rulemaking. In
`American Horse, this Court considered whether the Secretary
`of Agriculture had offered a satisfactory explanation under the
`APA of his refusal to institute rulemaking proceedings
`regarding the practice of deliberately injuring show horses by
`fastening heavy chains or similar equipment—referred to as
`“action devices”—to the horses’ front limbs. 812 F.2d at 2. In


`USCA Case #20-1025 Document #1910111 Filed: 08/13/2021 Page 13 of 44
`response to the argument that a certain study presented facts
`that merited a new rulemaking, the Secretary offered the
`following two-sentence explanation:
`6. I have reviewed studies and other materials,
`relating to action devices, presented by humane
`groups, Walking Horse industry groups, and
`independent institutions, including the study
`referred to in the Complaint.
`7. On the basis of this information, I believe that
`the most effective method of enforcing the Act
`is to continue the current regulations.
`Id. at 5. This Court found these “two conclusory sentences . . .
`insufficient to assure a reviewing court that the agency’s
`refusal to act was the product of reasoned decisionmaking.” Id.
`at 6. American Horse explained that the study at issue “may or
`may not remove a ‘significant factual predicate’ of the original
`rules’ gaps[,]” and remanded to the Secretary to make that
`determination. Id. at 7.
`Similarly, in American Radio, this Court considered
`whether the Commission had offered a satisfactory explanation
`for its decision to retain in its regulations a particular
`“extrapolation factor”—an estimate of the projected rate at
`which radio frequency strength decreases from a radiation-
`emitting source—despite studies submitted in a petition for
`reconsideration indicating that a different extrapolation factor
`would be more appropriate. 524 F.3d at 240–41. The
`Commission explained its decision by asserting that “[n]o new
`information has been submitted
`that would provide a
`convincing argument for modifying the extrapolation factor . .
`. at this time.” Id. (internal alterations omitted). We rejected
`that explanation as conclusory and unreasoned. Id.


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`The statements from the FDA on which the Commission’s
`order relies are practically identical to the Secretary’s statement
`in American Horse and the Commission’s statement in
`American Radio. They explain that the FDA has reviewed
`certain information—here, “all,” “the weight,” or “the totality”
`of “scientific evidence.” And they state the FDA’s conclusion
`that, in light of that information, exposure to RF radiation at
`levels below the Commission’s current limits does not cause
`harmful health effects. But they offer “no articulation of the
`factual . . . bases” for the FDA’s conclusion. Am. Horse, 812
`F.2d at 6 (internal quotation marks omitted). In other words,
`they do not explain why the FDA determined, despite the
`studies and comments that Petitioners cite, that exposure to RF
`radiation at levels below the Commission’s current limits does
`not cause harmful health effects. Such conclusory statements
`“cannot substitute for a reasoned explanation,” for they provide
`“neither assurance that the [FDA] considered the relevant
`factors nor [do they reveal] a discernable path to which the
`court may defer.” Am. Radio, 524 F.3d at 241. They instead
`represent a failure by the FDA to address the implication of
`Petitioners’ studies: The factual premise—the non-existence
`of non-thermal biological effects—underlying the current RF
`guidelines may no longer be accurate.
`When repeated by the Commission, the FDA’s
`conclusory statements still do not substitute for the reasoned
`explanation that the APA requires. It is the Commission’s
`responsibility to regulate radio communications, 47 U.S.C. §
`301, and devices that emit RF radiation and interfere with radio
`communications, id. § 302a(a), and to do so in the public
`interest, including in regard to public health, Banzhaf v. FCC,
`405 F.2d 1082, 1096 (D.C. Cir. 1968). Even the Commission
`itself recognizes this. See 2019 Order, 34 FCC Rcd. at 11,689
`(“The Commission has the responsibility to set standards for
`RF emissions”); 2013 Notice of Inquiry, 28 FCC Rcd. at 3,571


`USCA Case #20-1025 Document #1910111 Filed: 08/13/2021 Page 15 of 44
`(explaining that the Commission opened the notice of inquiry
`“to ensure [it] [was] meeting [its] regulatory responsibilities”
`and that it would “work closely with and rely heavily—but not
`exclusively—on the guidance of other federal agencies with
`expertise in the health field” in order to “fully discharge[] [its]
`regulatory responsibility”) (emphasis added). And the APA
`that Commission’s decisions concerning
`regulation of radio communications and devices be reasoned.
`The Commission’s purported reasoning in this case is that it
`chose to rely on the FDA’s evaluation of the studies in the
`record. Absent explanation from the FDA as to how and why
`it reached its conclusions regarding those studies, however, we
`have no basis on which to review the reasonableness of the
`Commission’s decision to adopt the FDA’s conclusions.
`Ultimately, the Commission’s order remains bereft of any
`explanation as to why, in light of the studies in the record, its
`guidelines remain adequate. The Commission may turn to the
`FDA to provide such an explanation, but if the FDA fails to do
`so, as it did in this case, the Commission must turn elsewhere
`or provide its own explanation. Were the APA to require less,
`our very deferential review would become nothing more than a
`rubber stamp.
`The Commission also argues that its order provided a
`reasoned explanation for its decision to terminate the notice of
`inquiry, despite Petitioners’ evidence, by observing that “no
`expert health agency expressed concern about
`Commission’s RF exposure limits,” and that “no evidence has
`moved our sister health and safety agencies to issue substantive
`policy recommendations for strengthening RF exposure
`regulation.” 2019 Order, 34 FCC Rcd. at 11,692. The silence
`of other expert agencies, however, does not constitute a
`reasoned explanation for the Commission’s decision to
`terminate its notice of inquiry for the same reason that the
`FDA’s conclusory statements do not constitute a reasoned


`USCA Case #20-1025 Document #1910111 Filed: 08/13/2021 Page 16 of 44
`explanation: silence does not indicate why the expert agencies
`determined, in light of evidence suggesting to the contrary, that
`exposure to RF radiation at levels below the Commission’s
`current limits does not cause negative health effects unrelated
`to cancer. Silence does not even indicate whether the expert
`agencies made any such determination, or whether they
`considered any of the evidence in the record.
`Our decision in EMR Network is not to the contrary.
`There, we rejected the argument that the Commission
`improperly delegated its NEPA duties by relying on input from
`other government agencies and non-governmental expert
`organizations in deciding whether to initiate a rulemaking to
`modify its RF radiation guidelines. 391 F.3d at 273. We found
`the Commission “not to have abdicated its responsibilities, but
`rather to have properly credited outside experts,” and noted that
`“the FCC’s decision not to leap in, at a time when the EPA (and
`other agencies) saw no compelling case for action, appears to
`represent the sort of priority-setting in the use of agency
`resources that is least subject to second-guessing by courts.”
`Id. (citing Am. Horse, 812 F.2d at 4). We agree with the
`dissenting opinion that the Commission may credit outside
`experts in deciding whether to initiate a rulemaking to modify
`its RF radiation guidelines. To be sure, “[a]gencies can be
`expected to respect the views of such other agencies as to those
`problems for which those other agencies are more directly
`responsible and more competent.” City of Boston Delegation
`v. FERC, 897 F.3d 241, 255 (D.C. Cir. 2018) (internal
`alteration and quotation marks omitted).
` What
`Commission may not do, however, is rely on an outside
`expert’s silence or conclusory statements in lieu of some
`reasoned explanation for its decision. And while it is certainly
`true that an agency’s decision not to initiate a rulemaking at a
`time when other agencies see no compelling case for action
`may represent “the sort of priority-setting in the use of agency


`USCA Case #20-1025 Document #1910111 Filed: 08/13/2021 Page 17 of 44
`resources that is least subject to second-guessing by courts,”
`EMR Network, 391 F.3d at 273, the same is true of most agency
`decisions not to initiate a rulemaking, see Am. Horse, 812 F.2d
`at 4–5. Nevertheless, an agency’s decision not to initiate a
`rulemaking must have some reasoned basis, and an agency
`cannot simply ignore evidence suggesting that a major factual
`predicate of its position may no longer be accurate. Id. at 5.
`Nor does Cellular Phone Taskforce help the Commission.
`There, the Second Circuit rejected the argument that the
`Commission was required to consult with the Environmental
`Protection Agency (“EPA”) or other outside agencies before
`declining to modify its RF radiation guidelines in the face of
`new evidence regarding non-thermal effects caused by RF
`radiation. 205 F.3d at 90–91. In so holding, the Second Circuit
`found that “[i]t was fully reasonable for the FCC to expect the
`agency with primacy in evaluating environmental impacts to
`monitor all
`relevant scientific
`the FCC’s
`reconsideration, particularly because the EPA had been
`assigned the lead role in RF radiation health effects since
`1970,” and that the Commission was not required to “supply
`the new evidence to the other federal agencies with expertise
`in the area.” Id. at 91. But the Second Circuit did not hold that
`the Commission could rely solely on the silence or unexplained
`conclusions of other federal agencies to justify its own inaction.
`It merely held that the Commission was not required to consult
`with outside agencies before declining to modify its RF
`radiation guidelines. No party before us today questions the
`propriety of that holding.
`Finally, the Commission argues that the Commission itself
`addressed the major studies in the record in its order
`the notice of
` Specifically,
`Commission points to its statement that “[t

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