Last month marked the first anniversary of the Federal Communications Commission’s revised radio-frequency radiation guidelines. Those guidelines constituted the first major overhaul of RF rules in nearly a decade and the only one since wireless entered the high-tech era of personal communications services, digital cellular and enhanced specialized mobile radio.
Despite the near-term FCC-mandated time frames for implementation, a large segment of the industry remains largely immobilized in this area-not because of any vagaries in the commission’s rules, but because of the enormity of the tasks involved and uncertainty regarding how seriously the rules will be enforced.
The FCC’s RF rules
The commission’s RF rules are, for the most part, admirably clear. They address non-ionizing thermal radiation, for which there is no record evidence of harmful effects. The rules govern only exposure levels, not transmission power per se.
The significance is that carriers legitimately can exceed RF power density limits as long as they use appropriate safety measures.
The rules include different maximum permissible exposure levels for occupational personnel, who should be aware of and can assert some control over their exposure; and for the general public, which needs and deserves more protection.
The rules also provide certain “categorical exclusions” that generally obviate the need to conduct environmental evaluation where there are good reasons to believe RF safety will not be an issue. The new rules reduce considerably the wireless facilities that qualify for CE. Previously, all cellular was categorized as CE; now it is not. Wireless facilities that remain CE are the following:
Narrowband: 1) non-rooftop antennas: height above ground level to radiation center less than 10m and the total power of all channels greater than 1,000 W ERP (1640 W EIRP); and 2) rooftop antennas: total power of all channels greater than 1,000 W ERP (1640 W EIRP).
Broadband: 1) non-rooftop antennas: height above ground level to radiation center less than 10m and the total power of all channels greater than 2000 W ERP (3280 W EIRP); and rooftop antennas: total power of all channels greater than 2000 W ERP (3280 W EIRP).
All FCC-regulated transmitters must comply with RF rules, whether or not they are categorically excluded. Even where facilities are CE, interested persons can petition to require an EE if they believe the facilities will have a “significant environmental effect,” or if there is concern about RF exposure.
If a carrier has reason to know of non-compliance, then an EE is needed even if the facilities are technically categorically excluded. Where sites are not categorically excluded, EEs are the norm.
A site, for purposes of assessing RF compliance, is the accessible area where the RF field exceeds maximum permissible exposure limits. Licensees must assist financially in achieving compliance in accessible areas where they contribute 5 percent or more of the total MPE. Once the 5-percent area is defined, licensees must act in good faith to consider RF from other licensees within that area. The RF exposure produced by each station is added to assess compliance with the RF limits.
Licensees, not site owners or managers, ultimately are responsible to the FCC. Generally when RF exposure limits are exceeded, compliance is the shared responsibility of all licensees whose facilities produce RF in excess of 5 percent of the applicable exposure limits. Licensees are expected to make a good faith effort to consider RF emissions from other nearby transmitters.
The FCC urges site owners to allow licensees to take reasonable steps to comply with RF rules and encourages common solutions for controlling access.
Exactly what “good faith” efforts are required vis-a-vis multiple-party coordination, is one of the few areas where the FCC’s rules are not entirely clear. The FCC does not specify how to allocate responsibility among licensees, but states that “one logical suggestion would be to assign compliance costs according to the percentage contributions at the non-complying area(s) for situations involving no change in transmitter facilities.”
It is clear, however, that a new applicant generally is responsible for site-compliance costs if its transmitter will create a non-complying situation at a location previously in compliance. The FCC recognizes that “some particular circumstances may dictate different solutions.” It notes that for most broadcast antenna farms, cooperative agreements have been developed. The FCC encourages any applicant or licensee to notify the commission if a collocated licensee will not cooperate.
Enter OSHA
The FCC is not the only federal agency responsible for ensuring that persons are not exposed to impermissible levels of RF radiation. The Occupational Safety and Health Administration has a longstanding obligation to ensure safe working conditions, including those involving RF radiation, for all employees.
Historically, OSHA has not been particularly aggressive in enforcing safe RF working conditions, due largely to the absence of clearly defined standards. The FCC’s recent promulgation of revised standards appears to have changed this. OSHA staff have reportedly undergone training with respect to RF enforcements. In any event, pending any possible future promulgation of its own rules, OSHA will use the FCC’s rules in assessing compliance.
Regardless of whether OSHA proactively searches out possible offenders, if a question of compliance arises with respect to any particular carrier, compliance with FCC rules will be reviewed as constituting compliance with OSHA requirements.
In addition to requiring employers to ensure acceptable exposure levels, OSHA specifically requires that employees receive certain basic training to safeguard against potential RF hazards in the workplace. Although OSHA’s rules governing mandatory training are somewhat vague, they expressly require the following:
Employers must train regarding precautions and safe practices.
Employers must ensure employees do not work until such employees have received proper training.
Upon demonstration that an employee already is trained prior to his employment, there is no need for training.
Training shall consist of on-the-job training or classroom-type training or a combination of both.
Employers shall certify that employees have been trained and shall provide the identity of the person training, the signature of the person who conducted the training and the date of training.
The certification record shall be maintained on file for the duration of the employee’s employment and made available upon request to the assistant secretary for OSHA.
So far as the substance of the training is concerned, OSHA requires only that such training shall include the following subjects: recognition and avoidance of dangers relating to encounters with harmful substances and animal, insect or plant life; procedures to be followed in emergency situations; and first-aid training, including instruction in artificial respiration.
When the commission adopted its rules, it properly determined compliance would be phased in over three years, commencing in October 1997 for new facilities and ending Sept. 1, 2001, for existing facilities. But it also included one major triggering event: Any major change at a site triggers the date upon which compliance is required.
One such event is license renewal. For paging companies, most licenses must be renewed by April 1, 1999. For those carriers, the three-year transition period is therefore cut in half. More to the point, the compliance date is a scant seven months away.
Certain major carriers and equipment providers already have undertaken considerable steps to ensure compliance where they are responsible for it. But th
ey are more the exception than the rule.
The most difficult issue of coordinating with other carriers is one area i
n which precious little progress appears to have been made. When carriers have not moved significantly toward compliance, lack of movement appears not to reflect indifference to the rules. Rather, the totality of the compliance obligation is seemingly large enough to preclude many companies from being able to get their arms around the matter.
In addition, after fighting a long battle to adopt rules that satisfy both safety needs and industry reality, the commission generally has been quiet on this front, with other high-profile regulatory matters being given the highest priority and greatest publicity.
Lack of noise from the commission should not be viewed as lack of interest. Even now the commission is preparing means to assess compliance. Questions could be asked regarding what steps have been taken to assure compliance, and how well employees are being trained. Due to staffing limitations, it is unlikely the commission will aggressively and pro-actively seek out non-compliance. Yet complaints can bring this matter to the commission’s attention, and carriers will be obligated to certify compliance as part of certain filings.
It is, of course, quite possible that industry-wide inability to comply will constitute a legitimate basis for compliance within established time frames. This phenomenon certainly seems to have been in part responsible for the expected extensions involving the Communications and Law Enforcement Act. But here, where clear standards have been promulgated, extensions may be far more difficult to obtain. The clear public safety goals involving RF standards, and the long and controversial battle surrounding their adoption, combine to virtually assure opposition to requests for across-the-board extensions.
Now that the commission has developed clear RF rules, the ball appears to be in the industry’s court to make compliance happen. While the task certainly is not a simple one, the costs of non-compliance, including harmful effects on employees in the general public and government sanctions, would appear sufficiently high to warrant the industry focusing on this issue.
Thomas Gutierrez is a partner in the law firm of Lukas, Nace, Gutierrez & Sachs in Washington D.C.
