Monday, November 30, 2015

Children are more exposed to cell phone radio-frequency radiation than adults

"it is very hard to understand why the FCC allows the use of a large SAM [specific anthropomorphic mannequin] model of dimensions derived from the 90th percentile head size of the U.S. Military recruits for psSAR [peak spatial absorption rate] compliance testing against safety guidelines." --  Professor Om Gandhi


If one reads back issues of Microwave News, it's not so hard to understand why the FCC adopted radio frequency (RF) radiation limits for cell phone handsets in 1996 that failed to protect the health and safety of cell phone users (men as well as women and children). 

In the early 1990's, the U.S. military and the defense industry played a major role in the RF standard-setting process over-ruling the Federal health agencies that advocated for more stringent limits at the time based upon the research. The result of health agency opposition to the military and industry position was that industry lobbied the Congress to cut off Federal health research funding on RF radiation which has lasted to this day. 


The Federal government maintains the status quo by arguing it needs more definitive research before strengthening RF exposure limits. However, the government does not fund the needed research. Doesn't this constitute gross negligence on the part of our government?

Norm Alster's new book."Captured agency: How the Federal Communications Commission is dominated by the industries it presumably regulates," helps explain why our government has maintained these obsolete RF safety limits for almost two decades.


The CTIA's law suit that attempts to block the City of Berkeley's cell phone "right to know" law is the latest example of industry "war-gaming" the science (Motorola, Microwaves and DNA Breaks: “War-Gaming” the Lai-Singh Experiments." Microwave News, Jan/Feb, 1997; p. 13; http://bit.ly/1xnEOGW). The ordinance is a simple consumer disclosure law that informs those who purchase a cell phone in Berkeley to read the manufacturer's minimum body separation instructions. The CTIA is arguing that there is a 50-fold safety factor so consumers don't need to pay attention to this information that the FCC requires manufacturers to disclose to ensure that cell phone users are not exposed to RF radiation that exceeds the Federal limit.


Radiofrequency exposure in young and old: different sensitivities

Redmayne M, Johansson O. Radiofrequency exposure in young and old: different sensitivities in light of age-relevant natural differences. Rev Environ Health. 2015 Dec 1;30(4):323-35. doi: 10.1515/reveh-2015-0030.

Abstract


Our environment is now permeated by anthropogenic radiofrequency electromagnetic radiation, and individuals of all ages are exposed for most of each 24 h period from transmitting devices. Despite claims that children are more likely to be vulnerable than healthy adults to unwanted effects of this exposure, there has been no recent examination of this, nor of comparative risk to the elderly or ill.

We sought to clarify whether research supports the claim of increased risk in specific age-groups. First, we identified the literature which has explored age-specific pathophysiological impacts of RF-EMR. Natural life-span changes relevant to these different impacts provides context for our review of the selected literature, followed by discussion of health and well-being implications.

We conclude that age-dependent RF-EMR study results, when considered in the context of developmental stage, indicate increased specific vulnerabilities in the young (fetus to adolescent), the elderly, and those with cancer. There appears to be at least one mechanism other than the known thermal mechanism causing different responses to RF-EMR depending upon the exposure parameters, the cell/physiological process involved, and according to age and health status. As well as personal health and quality-of-life impacts, an ageing population means there are economic implications for public health and policy.

http://1.usa.gov/1PWOqlc
Excerpts
To date there has been little age-comparative RF-EMR research, little discussion of observed effects in the context of normal age-related development, and little consideration of ways in which the elderly or ill may be compromised by RF-EMR.
In epidemiology, researchers often adjust for age thereby effectively removing its impact. They rarely analyse data specifically for age-related differences in the effects of RF-EMR exposure on the examined endpoints. This area represents an important missed opportunity. In studies which include a wide age-range e.g. (44, 51), such examination may prove informative.
One pattern observed across topics was a lesser or no effect in those ROS, melatonin, and EEG studies that used signals without the low frequency pulses. Those without the 8 Hz component had fewer or lower effects, and those without both 217 Hz and 8 Hz had no effects on the examined endpoints.  [My note: Second-generation GSM cell phone radiation has 8 and 217 Hz components.]
Whole body specific absorption rate (SARWB) increases with the reducing weight (94) and height (95) of the person. Variations in head shape and size leads to different areas of peak exposure in the heads of children and adults, with the cerebellum most exposed in children while the temporal lobes are most exposed in adults (96). There can be increased energy absorption (SAR) in young children of 2 dB to 5 dB in the eye and some brain regions, such as the cerebellum, hippocampus and hypothalamus. For all ages, lower RF frequencies (that is, longer wavelengths) penetrate further than higher ones. However, the same frequency penetrates comparatively more deeply and has a proportionally greater spread within a child’s brain than an adult’s (97). Total mean whole body absorption, as modeled by Joseph et al. (98) is higher in the 1 year old than the adult male. However, the significance of this is still under debate. Foster and Chou (99) state that there is clear evidence that age plays a factor in local SAR in certain tissues in the head due to different head size and different dielectric tissue properties. However, they conclude that these differences are insignificant in terms of Standard compliance, and that variations in exposure in real-life situations compared to worst-case compliance testing [would] provide widely different specific absorption rates. They also claim that their literature review does not support the concept that children absorb more radiation than children, however, a recent analysis of that review challenges their conclusion (100).
The role of resonance is also important. Frequencies that are resonant with an average adult’s size are considerably lower than those used in modern public telecommunications. As whole body RF absorption in humans is maximal when the person’s height is at peak resonance, and the frequency at which this peak resonance occurs increases as height decreases, an infant may be small enough to experience maximal absorption from the lower RFs occurring in our environment.
Dielectric tissue values (conductivity and permittivity) have an important influence on RF-EMR absorption. In a study by Peyman et al., 10 of 15 tissues tested had systematic variation in dielectric properties as a function of age (101). Bone marrow had the greatest difference with permittivity almost 7 times greater and conductivity 15.4 times greater in the tissue of ‘children” than “adults” (900 MHz exposure) (the study measured the values in porcine tissue considered to be representative of child and adult humans). These factors lead to increased absorption in toddlers and children.
We have brought to light a few circumstances which indicate an urgent need for specific research to clarify the situation. First, interhemispheric coherence in younger people with ADHD closely resembles that from RF-EMR exposure – this observation is supported by laboratory research findings; second, temporal and frontal alpha, delta and theta brain activity in healthy children after exposure to RF-EMR has been demonstrated to closely resemble temporal and frontal intermittent rhythmic delta activity seen in certain epileptic conditions; third, the small but but significant down-regulation of CD95 expression in RF-EMR stimulated CD4+ T-lymphocytes in the elderly is very concerning, as is the opportunity this offers to malignant cells, which take advantage of that aberrant loss. Are we actively shortening the lives of our grandparents and those with cancer? Fourth, and perhaps of most significance in this paper, is the increased inhibition of DNA repair in stem cells after RF-EMR exposure. Education of those preparing for parenthood, parents, and of their children needs to be prioritized, with the minimum steps being, a. advice to minimize exposure of the foetus and growing children of all ages to RF-EMR, and b. how to do this.
Clearly there is some mechanism at play causing a variety of responses to RF-EMR exposures encountered in the environment and from personal use of radiating devices. This indicates that current policy approach in many countries does not cater for all groups. Age-dependent RF-EMR studies and normal physiological development when considered together point to increased vulnerabilities in both the young (foetus, infant, child, and adolescent) and the elderly. Those risks would especially apply to those whose health or sleep is already compromised. Identifying older people as a group at increased risk from RF-EMR exposures is important; as well as personal health and quality of life impacts, an ageing population in many countries carries many economic implications for public health.

Yes the children are more exposed to radio-frequency energy 
from mobile telephones than adults

Gandhi, Om. Yes the Children are more exposed to radio-frequency energy from mobile telephones than adults. IEEE Spectrum. PP(99):1. Jun 23, 2015.


Abstract


Our reports of published research in several of the peer-reviewed journal articles in 1996, 2002 and 2004 have generated a lot of controversy over the last two decades including the most recent publication by Foster and Chou [1]. In this paper we present arguments based on Physics that the main reason for higher exposure of children (also women and men with smaller heads and likely thinner pinnae) to radiofrequency energy from mobile phones is the closer placement of the cell phone radiation source by several millimeters to the tissues of the head, e.g. the brain. Using heterogeneous anatomically-derived shaped models of the head, we have previously reported that the exposure increases by a compounding rate of 10-15% for every single millimeter of closer location of the radiating antenna. This is similar to the report of “~20% increase for every millimeter” in the Foster and Chou’s paper [1] from their Equation 1 even though their simplistic Equation 1 is valid only for a homogenous tissue slab of infinite size and the radiation source that is a wire dipole rather than a mobile telephone. Both of their assumptions for Eq. 1 are obviously not applicable for human exposures to mobile telephones. Actually the physical reason for such a rapid drop off of coupled energy is that the radiofrequency electromagnetic fields close to a radiating source in the so-called “near-field” region reduce in strength very rapidly with every millimeter of distance; even faster than in the “far-field region” where the EM fields reduce inversely with the square of the distance from the source.
Note: pinna is the outer part of the ear.

Open Access Paper: 
http://bit.ly/1SnFyBs

Excerpts
... we will present logical arguments based on easy-to-understand physical concepts that led to the conclusions presented in our papers [2-6] that children, women, and people with smaller heads with thinner pinnae will absorb more RF energy as compared to adult males with larger heads and thicker pinnae.
While Foster and Chou mention some of our published papers [2, 3, 6] they do not mention our other papers [4, 5] that address the important role of reduced distance of the radiofrequency (RF) radiating source of the mobile telephone for individuals with thinner pinnae in drastically increasing the SAR measure of RF absorption by 10-15% for every single millimeter of closer placement of the cell phone source of radio frequency radiation for such individuals.
... the main reason or such a drastic reduction of SAR is that the electromagnetic fields of an antenna drop off very rapidly in the so-called “near-field” region of the antenna faster even than in the “farfield” where the fields drop off as the square of the distance from the source.
... it has been reported that the dielectric properties of the various tissues are substantially higher (by 50% or more) for younger rats compared to adult rats. The authors Peyman et al. [7, 8] hypothesize that the decrease in the dielectric properties with age may be due to changes in water and organic contents of the tissues. Even though the corresponding data are not available for the human tissues, the implications for the assessment of exposure of children may be quite significant.
... Based on these studies we report in [5] that a model with thinner pinna of 6 mm thickness gives peak 1-g SAR that is up to 2.5 times higher at 1900 MHz and up to 1.7 times higher at 835 MHz as compared to the same model with thicker pinna of thickness 20 mm.
Since the main reason why children, women, and people with thinner pinnae and skulls absorb more radiofrequency energy is because of the placement of the cell phone radiating source closer to the brain (increasing by 10-15% for every additional millimeter of reduced spacing, determined by using planar, spherical and head-shaped models [2, 5]), it is very hard to understand why the FCC allows the use of a large SAM model of dimensions derived from the 90th percentile head size of the U.S. Military recruits for psSAR [peak spatial absorption rate]compliance testing against safety guidelines. Furthermore, the FCC-accepted SAM model has a tapered smooth plastic spacer instead of actual tissue pinna which can artificially separate the radiofrequency radiation source of the mobile phone by up to 10 millimeters at some locations resulting in an underestimation of both 1- and 10-g psSAR for male heads and for children and women by two or more times [5]. In closing, it is fortuitous that several authors worldwide have now validated our original findings that children, women, and individuals with smaller heads absorb more radiofrequency energy from mobile telephones ....
--

Om Gandhi, Professor in the Department of Electrical & Computer Engineering at the University of Utah, has published over 200 journal articles on electromagnetic dosimetry, microwave tubes, and solid-state devices. He edited the book Biological Effects and Medical Applications of Electromagnetic Energy (Englewood Cliffs, NJ: Prentice-Hall, 1990), and coedited the book Electromagnetic Biointeraction (New York: Plenum, 1989).

Dr. Gandhi was elected a Fellow of the American Institute for Medical and Biological Engineering in 1997. He has been President of the Bioelectromagnetics Society (1992–1993), Cochairman of IEEE SCC 28.IV Subcommittee on the RF Safety Standards (1988–1997), and Chairman of the IEEE Committee on Man and Radiation (COMAR) 1980–1982. He received the d’Arsonval Medal of the Bioelectromagnetics Society for pioneering contributions to the field of bioelectromagnetics in 1995, the Microwave Pioneer Award of the IEEE-Microwave Theory and Techniques Society in 2001, and the State of Utah Governor’s Medal for Science and Technology in 2002.

Tuesday, November 24, 2015

Cellphone Industry Product Liability Lawsuit


D.C. court considers how to screen out ‘bad science’ in local trials

Ann E. Marimow, Washington Post, Nov 24, 2015

Excerpts
The District’s highest court on Tuesday considered whether to change the rules for screening out “bad science” from trials and to adopt the standards used in most states and federal courts.
The case before the appellate court involves the question of whether cellphones can cause brain cancer. Plaintiffs have sued cellphone manufacturers and providers in D.C. Superior Court alleging that long-term exposure to cellphone radiation causes brain tumors.
The appellate court will not rule on that specific issue, but the full court is taking the opportunity to weigh how judges decide which expert witnesses are allowed to testify.
Under the standard used in the District, Illinois and a small number of other states, the judge determines whether a methodology or theory has gained “general acceptance” in the expert’s field. The test is known as Frye, a reference to a 1923 D.C. Circuit case.
After a landmark 1993 Supreme Court case, Daubert v. Merrell Dow Pharmaceuticals, federal courts — and now the majority of states — adopted a more extensive test, making the judge the “gatekeeper” for ensuring that the scientific evidence is “not only relevant, but reliable.”
On one hand, [Judge] Weisberg said, there is not enough evidence for any scientist to conclude with certainty that cellphones cause brain cancer. On the other, because of the District’s standards for admitting evidence, Weisberg said he would permit the testimony of five experts who would say in effect that cellphones are more likely than not to cause or promote certain brain tumors.
But Weisberg also noted that in a federal courtroom, that testimony was unlikely to be aired.
Attorneys for the 13 plaintiffs and a local organization of trial lawyers had urged the court in its filings to keep the standard, which lawyer Jeffrey B. Morganroth said Tuesday is “working just fine.”
Plaintiffs’ attorneys, representing people who suffer from or have died from brain tumors, said any change would be a “drastic departure” from current practice.
http://wapo.st/1MQclwA


Case on Health Risk From Cellphones Is Back in Court

Ryan Knutson, Wall Street Journal, Nov 22, 2015


Excerpts
Murray v. Motorola faces another test Tuesday when the two sides argue over what legal standard to use
In the years since the lawsuit was filed, other plaintiffs have brought more than two dozen similar cases, the most recent one in October. Defendants include almost all the major cellphone and wireless companies, including AT&T Inc., Verizon Communications Inc., Apple Inc. and Samsung Electronics Co.
Representatives for Motorola and the other defendants referred questions to the CTIA, the wireless industry trade group, which said in a statement that “peer-reviewed scientific evidence has overwhelmingly indicated that wireless devices do not pose a public health risk for adults or children.”
So far, the cases have mostly been a battle over legal procedure, not science ...
... A total of 13 cases have been consolidated into the Murray case, and the plaintiffs are seeking more than $1.9 billion in damages combined. 
In filings with the Securities and Exchange Commission, cellphone manufacturers and wireless carriers specifically acknowledge the risk posed by health-related lawsuits. “We may incur significant expenses in defending these lawsuits,” Verizon wrote in its 2015 annual filing. “In addition, we may be required to pay significant awards or settlements.”
... Eight of the plaintiffs in other cases have died while the lawsuits have been pending, he said. A decision in favor of Motorola and the other defendants, which are pushing for the Daubert standard, would send ripples beyond the Murray lawsuit. Seventeen of the other cellphone-health cases are stayed pending a ruling in this case.
If the plaintiffs prevail, discovery will begin on the broad issue of whether cellphones can cause brain tumors, specifically, glioma and acoustic neuroma. In addition, the plaintiffs would need to prove cellphones caused the cancer in their specific cases. 
 http://on.wsj.com/1LuI2cW


August 8, 2014

My comments:  This superior court ruling enables the discovery phase of the trial to begin.  Perhaps, we will soon learn whether the wireless industry has been covering up knowledge of the health risks of mobile phone use. 

The insurance industry has refused to provide product liability insurance on cell phones primarily due to this concern as they fear that cell phone litigation may turn out like tobacco or asbestos litigation did with huge punitive awards.


My most recent press release, "FCC: 98 Scientific Experts Demand Stronger Regulation of Cellphone Radiation" makes the case that the scientific community has known for many years about the health risks of mobile phone radiation. The wireless industry, however, has confused government officials and the public by co-opting scientists to support the industry's disinformation campaign to buy time.

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29 brain tumor lawsuits move toward trial in Washington, DC

Arthur Firstenberg, Cellular Phone Task Force, Aug 11, 2014

Twenty-nine high-profile lawsuits brought by people whose brain tumors were caused by their cell phones are finally moving toward trial. Six of these cases were originally filed in 2001 and 2002. Many of the plaintiffs are no longer alive.

On Friday, Judge Frederick H. Weisberg, in the D.C. Superior Court, admitted the testimony of five expert witness for the plaintiffs, and the 12- and 13-year-old cases will now move into the discovery phase. Each of the plaintiffs is asking for more than $100,000,000. There are 46 defendants including Motorola, Nokia, AT&T, Bell Atlantic, Cellular One, Cingular Wireless, SBC Communications, Verizon, Vodafone, the Telecommunications Industry Association, the IEEE, ANSI, the CTIA, and the FCC. The plaintiffs are represented by Jeffrey B. Morganroth of Morganroth & Morganroth, a law firm in Birmingham, Michigan.

For over a decade the industry and the plaintiffs have played tug-of-war with the oldest cases, sending them back and forth between federal and state courts, and fighting over whether the plaintiff's claims were preempted by the Telecommunications Act of 1996.

In 2009 the D.C. Court of Appeals, in Murray v. Motorola (982 A. 2d 764), ruled that the telecommunications companies could not be sued over brain tumors caused by cell phones manufactured after 1996. But since all of these plaintiffs had used pre-1996 phones, their lawsuits were allowed to go forward. They were also allowed to go forward on their claims that the defendants made false and misleading statements and failed to disclose information about the dangers of cell phones.  These claims were brought under the D.C. Consumer Protection Procedures Act.

In December 2013 and January 2014, testimony was heard from:

DR. SHIRA KRAMER, a Maryland epidemiologist;

DR. MICHAEL KUNDI, professor of epidemiology and occupational health at the Medical University of Vienna;

DR. VINI KHURANA, a neurosurgeon and professor of neurosurgery at the Australian National University in Canberra;

DR. IGOR BELYAEV, head research scientist at the Cancer Research institute at the Slovak Academy of Science in Bratislava, Slovakia;

DR. WILHELM MOSGOELLER, professor and medical doctor at the University of Vienna Medical School’s Institute for Cancer Research;

DR. DIMITRIS PANAGAPOULOUS, founder of the Radiation Biophysics Laboratory at the University of Athens;

DR. ABRAHAM LIBOFF, professor emeritus of physics at Oakland University in Rochester, Michigan; and

DR. LAURA PLUNKETT, pharmacologist and toxicologist in Houston.

On Friday, August 8, 2014, the testimony of Drs. Kramer, Khurana, and Panagopoulos was disallowed. But the testimony of Drs. Kundi, Belyaev, Mosgoeller, Liboff, and Plunkett was admitted. They will testify at trial about "general causation," i.e. that cell phones can cause brain tumors.

The lawsuits now move into the discovery phase, in which each side is compelled to produce documents and answer questions. This is the first time that the industry has had to turn over data. There will then be a fight over the admission of the testimony of witnesses on "specific causation," i.e. doctors and others who will testify that these specific cell phones caused these specific tumors.

Friday's decision by Judge Weisberg allowed 13 of the cases, which have been consolidated in one action, to go forward.  The other 16 cases are being tried separately, but the parties in those cases agreed to be bound by Friday's decision.


---

Judge Frederick H. Weisberg, Washington D.C. Superior Court: Expert Preemption Order (page 5): 

"Federal law is the supreme law of the land, but there is no constitutional provision that says federal facts are the supreme facts of the land. Federal law can preempt state law, but it cannot preempt scientific fact. The scientific truth, whatever it may be, lies outside of the FCC’s regulations about what is 'safe' or 'unsafe.'  The experts have offered their opinions on the state of the scientific knowledge and general causation. They have testified about the methodology they used to reach those opinions. Their testimony on these points, at this stage of the case, is not subject to preemption."  

--

Judge Weisberg's ruling on expert witness admissibility

Michael Patrick Murray et al. v. Motorola, Inc. et al.
Superior Court for the District of Columbia

http://bit.ly/DC_expert_ruling

--

Microsoft Corporation. Form 10-K. United States Securities and Exchange Commission. Washington. July 31, 2015. pp. 87-88. 
http://www.sec.gov/Archives/edgar/data/789019/000119312515272806/d918813d10k.htm

U.S. cell phone litigation
Nokia, along with other handset manufacturers and network operators, is a defendant in 19 lawsuits filed in the Superior Court for the District of Columbia by individual plaintiffs who allege that radio emissions from cellular handsets caused their brain tumors and other adverse health effects. We have assumed responsibility for these claims as part of the NDS acquisition and have been substituted for the Nokia defendants. Nine of these cases were filed in 2002 and are consolidated for certain pre-trial proceedings; the remaining 10 cases are stayed. In a separate 2009 decision, the Court of Appeals for the District of Columbia held that adverse health effect claims arising from the use of cellular handsets that operate within the U.S. Federal Communications Commission radio frequency emission guidelines (“FCC Guidelines”) are pre-empted by federal law. The plaintiffs allege that their handsets either operated outside the FCC Guidelines or were manufactured before the FCC Guidelines went into effect. The lawsuits also allege an industry-wide conspiracy to manipulate the science and testing around emission guidelines.
In September 2013, defendants in the consolidated cases moved to exclude plaintiffs’ expert evidence of general causation on the basis of flawed scientific methodologies. In March 2014, defendants filed a separate motion to preclude plaintiffs’ general causation testimony. In August 2014, the court granted in part defendants’ motion to exclude plaintiffs’ general causation experts. The plaintiffs filed an interlocutory appeal. In December 2014, the District of Columbia Court of Appeals agreed to hear en banc defendants’ interlocutory appeal challenging the standard for evaluating expert scientific evidence. Trial court proceedings are stayed pending resolution of the appeal.
Canadian cell phone class action
Nokia, along with other handset manufacturers and network operators, is a defendant in a 2013 class action lawsuit filed in the Supreme Court of British Columbia by a purported class of Canadians who have used cellular phones for at least 1,600 hours, including a subclass of users with brain tumors. Microsoft was served with the complaint in June 2014 and has been substituted for the Nokia defendants. The litigation is not yet active as several defendants remain to be served.

--

Court Allows Expert Testimony in Litigation Alleging Cell Phone-Linked Tumors According to Consumers' Legal Team

WASHINGTON -- Aug 8, 2014 /PRNewswire/ -- A Washington D.C. superior court ruled that five scientific expert witnesses can testify for consumers suffering from brain tumors allegedly caused or promoted by cell phone use Ashcraft & Gerel LLP Morganroth and Morganroth PLLC Lundy Lundy Soileau & South L.L.P. and co-counsel said today.

Judge Frederick H. Weisberg who is presiding over 13 consolidated lawsuits against the telecom industry ruled that experts met the Dyas/Frye legal standards and can offer testimony related to injury causation and health effects. The court held evidentiary hearings in December 2013 and January 2014 and reviewed hundreds of exhibits.

Judge Weisberg noted that while the court did not decide the issue of whether cell phones cause brain tumors new scientific studies and information have emerged recently. His order referred to a May 2014 French case-control epidemiological study that found support for "a possible association between heavy mobile phone use" and brain tumors.

Each of the plaintiffs in the litigation suffers from a brain tumor or is suing for a family of someone who died of brain cancer.

The plaintiffs are represented by Morganroth and Morganroth PLLC of Birmingham Mich.; Ashcraft & Gerel LLP of Washington D.C. and Lundy Lundy Soileau & South LLP of Lake Charles La.; The Knoll Law Firm LLC of Marksville La.; Pribanic & Pribanic LLC of Pittsburgh; Frasier Frasier & Hickman LLP of Tulsa Okla.; and Bernstein Liebhard LLP of New York.

Hunter Lundy of Lundy Lundy Soileau & South LLP said "The telecom industry argued for years that cell phone consumer litigants could not produce scientists who could relate exposure to cell phone radiation to tumors. The ruling today refutes that contention and our experts' opinions having met the Dyas/Frye test are admissible."

Jeffrey B. Morganroth of Morganroth and Morganroth PLLC said "We now have opinions and testimony from prominent scientific experts that will be admissible and support our clients' claims that cell phone radiation can cause brain tumors in humans. With this landmark ruling the cases are moving forward to fact discovery."

Michelle Parfitt and James F. Green of Ashcraft & Gerel LLP said "The evidence presented at the evidentiary hearings months ago only included publicly available materials and did not include any testing data or information in possession of the defendants. We will seek that information as soon as possible."

The first of the consolidated cases is "Michael Patrick Murray et al. v. Motorola Inc. et al." Case No. 2001 CA 008479 B in the Superior Court for the District of Columbia. The defendants in the cases are Motorola Inc. Qualcomm Inc. Nokia Inc. Audiovox Communications Corp. and Samsung Telecomm American LLC.

Contact: Erin Powers Powers MediaWorks LLC for Ashcraft Gerel LLP info@powersmediaworks.com.

SOURCE Ashcraft & Gerel LLP




Tuesday, November 17, 2015

FCC Process Reform Act of 2015

November 17, 2015

The House of Representatives just approved legislation, the FCC Process Reform Act of 2015 (H.R. 2583), to increase "transparency, efficiency, and accountability of the Federal Communications Commission" (FCC).


The FCC has not been transparent, efficient or accountable. I recently interviewed a staffer at the Government Accountability Office who referred to the FCC as a "dark hole."  

For example, in June, 2012, Microwave News reported that is common for the FCC to issue a Notice of Inquiry (NOI) to gather public input about an issue and then fail to act on this input in a timely manner:


"The commission is under no obligation to take any further action after issuing the NOI, or any other step along the way. To put the process in perspective, the last time the FCC proposed amending its RF [radiofrequency] rules was back in 2003 and that was to fine-tune some relatively non-controversial issues like measurement protocols. In other words, the FCC's 2003 amendments are still pending nearly ten years after they were first proposed. Nearly completed drafts of what will soon be issued have been languishing on the FCC's back burner for about five years. And those were refinements on the original rules released in 1996 when the number of cell phone subscribers in the U.S. was a tenth of what it is today and people used them, on average, less than four minutes a day."  

Some twelve years later, the FCC has yet to act on this 2003 NOI regarding radiofrequency measurement protocols.

Thus we should not expect the FCC to act soon on the far more important 2013 NOI, "Reassessment of Federal Communications Commission Radiofrequency Exposure Limits and Policies" (ET Docket Number 13-84) and "Proposed Changes in the Commission's Rules Regarding Human Exposure to Radiofrequency Electromagnetic Fields" (ET Docket Number 03-137).

In response to the 2013 NOI, the FCC has received more than 900 submissions regarding cell phone radiation regulations originally adopted in 1996. The preponderance of these submissions documents cell phone radiation health effects and calls upon the FCC to strengthen regulations and warn the public about cell phone radiation. For an index to these submissions see "Part I: Why We Need Stronger Cell Phone Radiation Regulations--Key Testimony Submitted to the FCC."

If H.R. 2583 becomes law, I question whether it will benefit public health or whether it will help the powerful corporate interests. The basis for my concern is a recent analysis by Norm Alster, an investigative reporter who spent a year at Harvard while he wrote a book which reveals that the FCC has been captured by the industries it regulates (http://bit.ly/FCCexposed):


"Currently presiding over the FCC is Tom Wheeler, a man who has led the two most powerful industry lobbying groups: CTIA and NCTA. It is Wheeler who once supervised a $25 million industry-funded research effort on wireless health effects. But when handpicked research leader George Carlo concluded that wireless radiation did raise the risk of brain tumors, Wheeler‘s CTIA allegedly rushed to muffle the message. ”You do the science. I‘ll take care of the politics,” Carlo recalls Wheeler saying."


"As a captured agency, the FCC is a prime example of institutional corruption. Officials in such institutions do not need to receive envelopes bulging with cash. But even their most well-intentioned efforts are often overwhelmed by a system that favors powerful private influences, typically at the expense of public interest."

In the documentary film, Mobilize, John Walls who was Vice President of the CTIA at the time, asserted:

"I bet our people, our organization have had 500 meetings with the FCC over the past year on 25 different topics. So the fact that we would ever go to the FCC, if somebody thought that unusual they don’t understand what’s going on in regard to the give and take in the formation of policy."  http://bit.ly/MobilizeTranscript

In sum, the FCC Process Reform Act of 2015 does not go far enough in reforming the FCC and may result in increased threats to public health.


For more information about this bill:




Tuesday, November 10, 2015

Analysis of Cellular Phone Radiation Hazards in 2002

My comments: This paper was written in 2002 by Jamie Wisz while a 3rd year law student at Harvard. Thirteen years later despite the preponderance of peer-reviewed research evidence which indicates that exposure to mobile phone radiation is harmful to humans, the FCC maintains the same obsolete RF standards adopted in 1996 and cell phone testing procedures have not been improved despite recommendations from the General Accountability Office, the American Academy of Pediatrics and other medical associations and consumer organizations.

Moreover, the FDA has failed in its responsibility to protect public health. The agency's efforts to promote research on cell phone radiation health effects have been seriously deficient. The FDA recommended a major research project on the health effects of exposure to second generation (2G) cell phone radiation on rodents, but more than a decade later the National Toxicology Program project has yet to publish a single result.

Below are excerpts from Ms. Wisz's insightful analysis along with her policy  recommendations. Perhaps the legal analysis she provided (not summarized below) will be useful to lawyers who are interested in defending the necessity for local and state cell phone "right to know" laws since the FDA and FCC have shirked their responsibility to protect the American public for almost two decades.light of the VW "dieselgate" scandal, some scientists have become concerned about how easy it would be to rig a cell phone to pass the FCC cell phone RF radiation certification test.

Ms. Wisz's paper is available from Harvard at the link below.

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Jamie Wisz. Potential Hazards of Cellular Phone Radiation: Responses to Fear and Uncertainty. 2002 Third Year Paper. Harvard Law School. May 2002. http://nrs.harvard.edu/urn-3:HUL.InstRepos:8889484

Abstract

In recent years, the public has become concerned that the electromagnetic radio-frequency radiation (RF radiation) emitted by cellular telephones may pose serious health risks, including the risk of cancer. There are over 110 million cell phone users in the United States and many of them may not know that cell phones actually send electromagnetic waves into the user's brain. Depending on how close the cell phone antenna is to one's head, as much as sixty percent of the microwave radiation from the phone is absorbed by, and actually penetrates the head, possibly reaching as far as an inch-and-a-half into the brain. The problem is that it is still unknown whether or not this RF radiation from cellular phones actually causes any sort of damage to the user.

This paper will explore many aspects of the issue of cellular phone radiation. The first section of the paper will explain what RF radiation is and provide an overview of the various scientific studies which have examined the effects of RF radiation on health. The second section of the paper will discuss and critique the regulatory responses by the FDA and the FCC in the midst of this scientific uncertainty. The third section of the paper will provide an overview of the judicial treatment of cell phone radiation issues by exploring some of the recent case law in this area. Finally, the last section of the paper will provide policy recommendations for how the FDA and FCC should be responding to this potential health crisis.


Excerpts
The only thing that is clear right now is the fact that it is still unknown whether or not cell phone use can be deleterious to one's health. It also seems as if conclusive scientific data on this topic may not be available for another several years ....
... It should be noted that there are various government agencies that are responsible for different aspects of mobile phone safety. These agencies include the Food and Drug Administration (FDA"), Federal Communications Commission (FCC"), National Institute for Occupational Safety and Health, Environmental Protection Agency, Occupational Health and Safety Administration, National Telecommunications and Information Administration, and the National Institutes of Health.79 The following section will focus on the two agencies with the most responsibility in this area: the FDA and the FCC.
FDA's Role
The FDA is empowered by Congress to directly regulate electronic products that emit radiation with regard to public health and safety. Therefore, the FDA has the primary responsibility to respond to the concern over cellular telephones. The FDA receives this enforcement authority through the Electronic Product Radiation Control Provisions of the Federal Food, Drug, and Cosmetic Act. The Radiation Control Provisions, originally enacted as the Radiation Control for Health and Safety Act of 1968, are located in Sections 531 through 542 of the Act ...
Currently, the FDA does not review the safety of radiation-emitting consumer products such as mobile phones before marketing, as it does with new drugs or medical devices. 83 However, the agency does have the authority to take action if mobile phones are shown to emit radiation at a level that is hazardous to the user.84 \In such a case, the FDA could require the manufacturers of mobile phones to notify users of the health hazard and to repair, replace or recall the phones so that the hazard no longer exists."85
For many years it seemed as if the FDA refrained from exercising the full extent of its powers over the cell phone industry. Instead, the FDA chose to take limited actions until the scientific community could con firm the presence of hazards associated with exposure to RF radiation.86 The FDA first took action in 1993, when it met with  representatives of the cellular telephone industry to discuss the potential health problems associated with cell phones and possible solutions.87 Since then, the FDA has worked with manufacturers in order to seek ways to minimize human exposure to RF radiation.88 For example, the FDA and manufacturers have discussed the advantages and disadvantages of redesigning the placement of the antenna so that the source of radiation is further away from the user's head.89
In recent years, the FDA has also become more active in overseeing and supporting research on the effect of RF radiation exposure on human health. For instance, the FDA is working with the U.S. National Toxicology Program as well as with groups of investigators around the world to ensure that high priority animal studies are conducted to address important questions about the effects of RF exposure.90 The FDA has also urged the mobile phone industry to cooperate in providing mobile phone users with the best possible information on what is known about the possible effects of mobile phone use on human health.91 ....
Although the FDA's more recent actions have been somewhat proactive, this was not the case for many years. In fact, until the formation of the CRADA in 2000, the FDA seemed content with waiting for the scientific results from WTR's research on the health effects of mobile phones. However, WTR was funded by the cellular telephone industry itself. Certainly it seems as if there is a conflict of interest problem which arises from the fact that the industry was allowed to do its own scientific testing with little or no oversight.107 ....
At this point, the FDA has not prescribed any standards for the cell phone industry. While it is true that the FDA needs to become aware of the health effects of cell phone radiation before any standards can be promulgated, up until June of 2000, the FDA took virtually no steps towards advancing this research. Due to the conflict of interest problem, reliance on the cell phone industry to do their own scientific research was insufficient ... As shown in the scientific studies discussed above, there was evidence as early as the 1970's that exposure to EMF's could have a detrimental impact on one's health.111 Certainly by the early 1990's there was increasing evidence that cell phone radiation could be harmful.112 ....
... since the EPRC provision puts the FDA in the lead role of protecting the public health from cell phone radiation, the FDA simply acted too slowly in reacting to this potential health concern. The last section of this paper will make some additional suggestions as to what other measures the FDA should currently take to ensure public knowledge and safety in this area.
FCC's Role
The FCC is required by the National Environmental Policy Act of 1969 to evaluate the effect of emissions from FCC-regulated transmitters on the quality of the human environment.113 On August 1, 1996, under intense Congressional pressure to act, the FCC adopted and issued a new set of RF radiation exposure guidelines that were applicable to cellular telephones for the first time.114
Because the FCC does not consider itself a health agency with the expertise to determine what levels of radiation are safe, it turned to health experts (such as the FDA), and radiation experts outside of the FCC for guidance on these regulations.115 The FCC adopted exposure limits based on industry standards established by the American National Standards Institute (ANSI), the Institute of Electrical and Electronic Engineers (IEEE), and the National Council on Radiation Protection and Measurements (NCRP).116 These limits for cellular telephones are based on exposure criteria quantified in terms of specifi c absorption rate (SAR), which is a measure of the rate of RF absorption into the body.117 Cellular telephones must be below the SAR limit of 1.6 watts/kg as averaged over one gram of tissue.118 ....
There are many scientists and commentators who argue that the FCC's guidelines are an ineffective and/or inadequate measure to guard against any of the potential risks of RF radiation.122 According to some scientists, the FCC's guidelines are flawed because they do not take into account the possibility that weaker levels of RF radiation are just as harmful to human health as stronger levels.123 ... Others argue that the FCC's exposure standards are inadequate because they are limited to providing protection from thermal effects and fail to address potential non-thermal e ffects.126 ... Furthermore, there have been criticisms that the FCC's requirements are so vague that a cell phone can pass the guidelines when tested in one position and exceed maximum allowable levels when held in another position.127

... these guidelines can only be as effective as the scientific evidence behind them. Unfortunately, the FCC's radiation emission guidelines were established in 1996, four years before the FDA became actively involved in the research process. This fact underscores the need for further research on the e ffect of radiation at various levels. To reiterate, such research is currently underway; however, it would have been more helpful had the research begun at an earlier date.
Proposed Policy on Cellular Phone Radiation Issues
As mentioned in the section on regulatory responses, the FDA is currently on the right path in promoting further research on cell phone radiation and its effects on human health. However, I submit that the FDA could and should do more. For instance, the FDA should require that all cellular phones currently on the market must include inserts on the FDA's Consumer Update on Mobile Phones. Currently, the addition of these inserts is voluntary. The FDA has complete authority to require the inclusion of these inserts under 21 U.S.C. x 360kk (a)(1), in which the Secretary may require the attachment of warning signs and labels..."176 on such products. In addition, the FDA should require that all cell phone companies' web pages have links to this consumer update, in an e ffort to notify users of previously purchased cellular phones. This requirement of including the FDA's Consumer Update on websites and with all new phones, will allow cell phone purchasers to be fully aware of the potential hazards of cell phone use.
Furthermore, the FDA should require that all cellular phones on the market include an external headset. Once again, the FDA has the power to impose this requirement under 21 U.S.C. x 360kk (a)(1), as the Secretary can prescribe performance standards for electronic products to control the emission of electronic product radiation from such products..."177 There is no question that use of an external headset greatly reduces the amount of RF radiation that penetrates inside the cell phone user's head. Since there are studies which suggest that this RF radiation may be dangerous to human health, requiring inclusion of a headset with all new cell phones is a relatively small price to pay for the prevention of possible negative health effects. These headsets only cost about $5 - $10 and will not be a major expense for the cell phone industry.178
FCC standards also need to be improved. Although it is useful for each phone to have a FCC identification number which can be used to obtain information about that particular cell phone's radiation levels, it is currently a somewhat obscure and difficult process. For instance, the FCC number on many cell phones can only be viewed by removing the cell phone battery. In addition, cell phone consumers are probably not even aware that they can find this information unless they log on to the FCC's website. The FDA, in accordance with its powers under the EPRC provision should require that radiation levels of each cell phone model are more clearly displayed on all phones, along with a brief description of what these levels mean. Again, by providing this information, cell phone purchasers will become more aware of the properties and potential dangers of their particular phone. In addition, FCC standards should be revised as more knowledge about the effects of differing levels of RF radiation becomes available. Currently, as discussed earlier, the FCC's standards seem somewhat arbitrary in relation to human health.
The case law in this area shows us that there is consumer demand for more information about the harms of cell phone use. There is also a demand for increased safety precautions such as inclusion of headsets. The Naquin case, and its lack of a preemption finding, illustrates the belief by many that the FDA is not doing its job in providing this information and/or precautions. If left to the courts, it is possible that each state could prescribe its own standards for cell phones. However, a national standard is much more desirable and efficient. This is precisely why the FDA needs to impose the further regulations suggested here, so that all Americans have access to the same information and are able to take the same precautions to safeguard their health.
Clearly it is difficult for regulatory agencies and courts to take much action amidst all the scientific uncertainty surrounding cell phone radiation. Policy makers must make difficult choices and balance conflicting interests in deciding a course of action which adequately protects the public from potential harm, without running the risk of driving a useful product out of the market. A failure by regulatory agencies and courts to eff effectively act on this unresolved issue could lead to serious, if not catastrophic, consequences. There are over 110 million cell phone users in the United States and industry forecasters predict that the demand for cellular services will grow dramatically, to the point where nearly all Americans will have a cellular phone.179 These facts drive home the point that courts and agencies should take appropriate steps to avoid the possibility of a public health crisis by acting aggressively now. At the same time, there is also a danger that courts and agencies could unnecessarily and unreasonably cause harm to the cellular telecommunications industry, a multi-billion dollar industry that plays a role in advancing the general welfare of citizens and business through improved telephonic communications. Cellular technology enhances the ability of police, fire, and other rescue personnel to provide emergency services, increases business productivity and efficiency, and facilitates the exchange of information. Certainly policy makers must consider these benefits whenever they propose any regulations in this area.
The policy recommendations proposed above correctly balance these two competing goals of 1) informing consumers and preventing potentially detrimental health effects, and 2) preventing unreasonable harm to the cellular telecommunications industry. All of the policy recommendations proposed above are relatively easy and cheap to implement. By combining these actions, along with continued scientific research, the FDA will be providing effective regulation in this area of uncertainty and fear.