WASHINGTON-In a January 1993 article, a year-and-a-half before joining the Federal Communications Commission, then-attorney Rachelle Chong laid out what has turned out to be a model defense of cellular phone-cancer lawsuits.
Chong, in a paper titled “Zap, Crackle, Pop” delivered at a conference in Asia, outlined steps wireless carriers could take to squelch an issue brought to life by a highly publicized lawsuit in early 1993 when a Florida man alleged the brain cancer that killed his wife was caused by her cellular phone.
Today, the pocket phone-cancer link debate has been re-energized as new personal communications services licensees seek local zoning approvals to erect more than 100,000 base station antennas throughout the country.
Added to that is renewed scrutiny by Congress and the news media about the lack of biological studies by a cellular telephone industry-funded cancer research program after four years and expenditures of $17 million.
Options advanced by Chong, who at that time practiced public utilities law at the San Francisco law firm of Graham & James, included doing nothing, establishing educational programs, considering low cost “prudent avoidance techniques,” funding research, monitoring electric-and-magnetic-fields-related legislation and constructing legal strategies for challenging personal injury and product liability lawsuits filed by cell phone users.
“One may … begin strategizing as to potential defenses for possible litigation claims as to radio-frequency EMF,” said Chong. “Retention of knowledgeable counsel and experts is recommended. They can assist you in strategizing to form your defenses, including traditional defenses such as contributory negligence, comparative negligence, or assumption of the risk. Naturally a defendant will likely argue that exposure to radio-frequency EMF is not harmful and could not be the cause of the plaintiff’s injury. Hiring an expert would be invaluable in order to prepare a summary of the scientific body of knowledge to make the point that so far, there is no scientific `proof’ that radio-frequency EMF causes cancer.”
Chong wrote that a defendant could also “attack the plaintiff’s expert with the usual strategies. For example, the following arguments can be employed: the plaintiff’s expert is not qualified to opine on this specialized area or is expressing opinions that lack adequate scientific support; the expert’s measurement of the radiation dosage are erroneously performed; or the expert’s reliance on scientific studies showing EMF harm do not pertain to the part of the EMF spectrum at which the defendant’s radio-frequency operates.”
Indeed, Motorola Inc. relied on such retorts in a December 1994 memo to coordinate with the Cellular Telecommunications Industry Association and Wireless Technology Research L.L.C. a media strategy to downplay University of Washington findings of single- and double-strand DNA breaks in rats exposed to low-level, 2.45 GHz microwave radiation for two hours.
The cellular industry reacted much the same in dismissing a recently published Australian study that found increased lymphoma in mice dosed with 900 MHz digital phone radiation.
That Chong, as counsel to paging and cellular companies in the San Francisco Bay area, would develop legal strategies to deflect lawsuits alleging cancer from mobile telephones is not unusual. That’s what lawyers are paid to do, especially if the clients include a partnership of McCaw Cellular Communications Inc. (now AT&T Corp.) and PacTel Cellular (later spun off into AirTouch Communications Inc.) and Mobile Telecommunication Technologies Inc. There is little evidence that her past legal views on RF bioffects influenced decision-making at the FCC. Chong says she hasn’t followed the RF health issue closely since becoming a commissioner.
Even so, her strong advocacy of wireless carriers on the RF bioffects as a lawyer is symbolic of the driving force she became on other key wireless issues as commissioner during the past three years.
Chong, who lost her bid for reappointment despite backing from CTIA President Thomas Wheeler and other industry heavyweights, served during arguably the most dynamic period in the history of telecommunications policymaking. What she lacked was support from key Republicans, like Senate Commerce Committee Chairman John McCain (R-Ariz.).
The 37-year-old moderate Republican, who Clinton appointed to the FCC in May 1994, played a major role in implementing telecommunications reform legislation, which she says is her proudest accomplishment.
“Being a commissioner is an honor and a privilege,” said Chong, though adding that returning home to San Francisco “is kind of looking kind of attractive to me.”
Chong championed major carrier issues, including state and federal commercial wireless deregulation.
As such, the wireless industry is losing a powerful ally and a friend in Rachelle Chong. She will remain at the FCC until Clinton names a successor. Chong supported wireless resale and interconnection reforms backed by carriers.
More recently, Chong voiced support for AT&T’s recommendation that the 45 megahertz commercial wireless spectrum cap be re-examined. Hundt, who has aggressively fought Chong and Quello on telecom policy, opposes relaxing the spectrum cap because it serves as an antitrust check against spectrum hoarding by well-heeled carriers, like AT&T.
But some have questioned if Chong’s tight embrace of wireless carriers clouded her objectivity. Wireless resellers have challenged resale deregulation in federal appeals court.
In addition to her past legal ties with the wireless industry, Chong’s husband, Kurt Del Prete, is an executive at Whalen and Co., a major wireless turnkey construction company in California. Susan Toller, a legal aide to Chong, used to counsel wireless clients in San Francisco.
“I have always sought the advice on this issue (from the FCC Office of General Counsel),” said Chong.
As such, it was decided that Chong could participate in wireless rulemakings despite her and her husband’s ties to the industry. She was recused from only one matter in three years, an adjudicatory proceeding involving American Personal Communications because her husband’s company subcontracted with APC several years ago.
But soon, Chong-a self-avowed Trekkie-will put official Washington behind her and head west to surf the Net on the Pacific coast.
