DA 26-997 Released: September 17, 2026: FCC SEEKS COMMENT ON RF EXPOSURE ISSUES SUBJECT TO D.C. CIRCUIT R…

DA 26-997 Released: September 17, 2026: FCC SEEKS COMMENT ON RF EXPOSURE ISSUES SUBJECT TO D.C. CIRCUIT REMAND IN ENVIRONMENTAL HEALTH TRUST V. FCC, ET Docket No. 13-84. I am Robert J. Berg, the founder and principal of the Law Office of Robert J. Berg PLLC. My law firm specializes in wireless telecommunications law. My firm is one of the very few law firms which primarily represents the interests of residents of communities where wireless carriers are seeking permits to install and operate personal wireless communications infrastructure. My firm also represents local governments which seek expert counsel as they consider applications for such wireless facilities. I, personally, have been practicing law for 43 years. I graduated from the University of Chicago Law School and the University of Chicago Graduate School of Business, receiving my JD and MBA degrees in 1983. For most of my career, I have litigated complex multi-party litigations, and specialized in complex class action litigation in the federal and state courts nationwide. Over the past several years, however, I have focused my practice nearly exclusively on wireless matters. I am fully familiar with the Environmental Health Trust v. FCC action in the US Court of Appeals for the DC Circuit, and I have represented Environmental Health Trust on certain filings following the Court of Appeals decision in 2021. I am submitting this Public Comment in response to the FCC’s DA 26-997 Released: September 17, 2026: FCC SEEKS COMMENT ON RF EXPOSURE ISSUES SUBJECT TO D.C. CIRCUIT REMAND IN ENVIRONMENTAL HEALTH TRUST V. FCC, ET Docket No. 13-84. In my experience, the FCC has a long and ignoble history of disserving the American people as a captured agency beholden to the industry it is supposed to regulate in the public interest. The agency has been captured for decades – under both Republican and Democratic administrations. But under the leadership of corrupt and conniving Chairman Brendan Carr, the FCC has reached a new nadir. The instant disingenuous Request for Public Comment represents a pathetic response to the Order of the DC Circuit requiring the FCC to respond to the Petition for Writ of Mandamus filed by Environmental Health Trust and Children’s Health Defense with the DC Circuit this past Spring. Petitioners filed for writ of mandamus after the FCC contemptuously ignored for 4 ½ years the mandate from the DC Circuit to reconsider most of the FCC’s unreasoned and arbitrary 2019 ruling refusing to conduct a rule-making procedure to update its 1996 RF exposure guidelines. The DC Circuit’s landmark decision in EHT v. FCC, 9 F.4th 893 (D.C. Cir. 2021), dealt a humiliating blow to the FCC. The panel eviscerated the FCC for its utter lack of reasoned decision-making on all the significant health and environmental issues raised, except for cancer, which the panel found that the FCC at least set forth a reasoned basis – without opining on the merits of the FCC’s reasoning. The DC Circuit excoriated the FCC for relying on the utterly conclusory and unreasoned statement of FDA Dr. Jeffrey Shuren that scientific studies do not show health risks from exposure to low level RF radiation. The DC Circuit held that Dr. Shuren’s statements were so conclusory and lacking in substantiation that reliance thereon is unreasonable, arbitrary, and capricious as a matter of law. The FCC, which lacks any scientific expertise of its own with respect to the human health and environmental impacts of wireless radiation exposure, necessarily must consult with and rely upon other agencies having such expertise, ruled the DC Circuit. Instead, by relying on Dr. Shuren’s unsubstantiated conclusory assertion of no health impact, the FCC acted as arbitrarily and capriciously as Dr. Shuren, and the DC Circuit held that two wrongs don’t make a right. After the DC Circuit issued its opinion, the NY Times later revealed that Dr. Shoren handled numerous matters at the FDA involving clients represented by his wife, an attorney, matters from which the law and FDA rules required him to recuse himself from considering. Dr. Shuren retired from the FDA before formal ethics investigations into his conduct were instituted. Given the FCC’s sordid ethical standards, it’s no surprise that the FCC would rely extensively on conclusory, unsupported statements of an unethical scoundrel like Dr. Shuren to justify maintaining archaic RF exposure guidelines that are not protective of human health and fail to reflect current independent scientific research untainted by industry money and influence. Yet, even in the present Notice for Public Comment, the FCC is unbowed by its public humiliation by the DC Circuit. Instead, this Notice blithely misstates the DC Circuit opinion, and intentionally solicits public comment based on its wrong and constricted interpretation of the EHT decision. The EHT mandate is about assuring that the FCC’s 1996 RF emissions guidelines adequately safeguard the health of the public today – thirty years later. The 1996 FCC guidelines were issued in a rush at the dawn of the wireless age when hardly any cell phones, no less a plethora of wireless devices, existed, and the number of cell towers and other wireless communications facilities around the country were minimal. Today, there are approximately 500,000 cell towers and other wireless communications facilities in the US, all transmitting RF radiation 24/7. Meanwhile, virtually every person in the country possesses a cell phone and/or other wireless devices. Human exposure to wireless radiation is ubiquitous and constant. In 1996, the telecommunications industry effectively lobbied (bribed) Congress to pass Section 332(c)(7) of the Telecommunications Act of 1996, which prohibits State and local governments from denying wireless carriers permits to construct and operate wireless facilities on the basis of the health risks of wireless radiation exposure. But there’s an important caveat to this provision – the federal preemption applies so long as the wireless facility at issue transmits at levels within the FCC’s RF guidelines. Thus, Congress has circumscribed State and local governments’ traditional zoning powers with respect to health in reliance on the FCC’s assurance that the FCC’s wireless emissions guidelines protect human health. Congress also mandates that the FCC guidelines protect against other environmental concerns, which means that wireless radiation exposure should not negatively impact flora and fauna. The 1996 guidelines were weak and seriously flawed from the outset. But now, 30 years later, they are a laughingstock to serious independent scientists who are not on the industry payroll. Literally thousands of peer reviewed published studies demonstrate statistically significant linkages between exposure to wireless radiation from wireless devices and wireless transmission facilities and serious negative health impacts to humans. While the exact etiology has not definitively been determined for all diseases and negative health impacts, persistent wireless radiation exposure appears to lead to oxidative stress which is well known to precipitate a cascade of negative human health conditions. Similarly, serious scientific studies of the impact of wireless radiation exposure on flora and fauna are ongoing, and already numerous studies show negative impacts on birds, bats, bees, and flora. Fortunately, in response to this request for public comments, many of these contemporary studies are being introduced into the administrative record for the FCC’s consideration. The problem is that under Chairman Carr’s reign, the agency takes a wholly dismissive view of the dangers of wireless radiation exposure to both humans and flora and fauna. Even under his Democratic predecessor, the FCC failed to take the DC Circuit’s mandate seriously. It has done nothing at all for 4 ½ years. The panel should find the FCC in contempt of court. That deserved outcome is unlikely. Equally unlikely is the FCC giving the submitted evidence herein an objective review and a fair shake. However, what’s new and what gives practitioners like me some hope is that HHS has also opened a proceeding requesting public comment on essentially the same issue. HHS actually has expertise in examining the health impacts of wireless radiation exposure to humans – or at least in studying the issue and coming up with informed conclusions and recommendations. I understand that HHS will study the issue – and hopefully issue well-informed recommendations which the FCC will have to follow inasmuch as the FCC has no internal expertise. My experience in dealing with the FCC on various cell tower matters is that the FCC has operated entirely against the public interest. Its rulings in the matters in which I have been involved have always been conclusory and are sloppy and usually contain seriously errors of fact. Most federal agencies in my experience are filled with people trying to do good for the public at large. The FCC is interested only in protecting the revolving door between the industry and the agency and thus, protects only the industry’s interests. Respectfully, Robert J. Berg