An Exposé of the FCC: An Agency Captured by the Industries it Regulates

Click on graphic to enlarge. Posted with permission of Einar Flydal.

Environmental Procedures at the FCC: A Case Study in Corporate Capture

Erica Rosenberg (2022). Environmental Procedures at the FCC: A Case Study in Corporate Capture. Environment: Science and Policy for Sustainable Development. 64:5-6, 17-27, DOI: 10.1080/00139157.2022.2131190.

No abstract

"With infrastructure including millions of miles of fiber optic cable and lines, thousands of towers, earth stations and satellites, and hundreds of thousands of small cells, 1 the telecommunications industry leaves a significant environmental footprint: wetlands filled, viewsheds marred, cultural resources damaged, and habitat destroyed. As the agency overseeing telecommunications, the Federal Communications Commission (FCC) regulates radio, TV, satellite, cable, and both wireline and wireless communications—and associated entities like Verizon, AT&T, and broadcast and radio corporations. It also plays a critical role in providing universal broadband and telecommunications access, and authorizing facilities associated with wireline and wireless build-outs. Yet the FCC fails to fulfill its mandatory duties under the National Environmental Policy Act (NEPA) in multiple and significant ways. 2 ...."

Applicants and licensees submit no documentation of their determination that their project is categorically excluded, and the agency does not track categorically excluded actions. With the applicant conducting the initial environmental review of whether the project is categorically excluded by assessing the list of extraordinary circumstances (i.e., the NEPA checklist), as well as preparing the environmental assessment, the burden falls on the public to learn of the proposed action and to raise a potential effect.

But categorically excluded actions, including authorization of certain towers, do not receive public notice; only applications for towers that require registration (generally taller than 199 feet) are put on notice, and those may or may not have associated environmental assessments. In addition to towers under 200 feet not posing an air hazard, these stealth projects that the agency has no record of include small wireless facilities associated with 4G and 5G.

That the public has no access to this information is particularly problematic in the radio frequency context, where applicants are required to meet radio frequency emissions standards or submit an environmental assessment. If the applicants do analyze the checklist and radio frequency studies at all, they routinely categorically exclude small wireless facilities, despite growing public concern about radio frequency associated with such technologies. Without access to the documented checklist, the public has little to no basis on which to refute or comment on checklist conclusions on radio frequency. And given the streamlined process, citizens often find out about facilities only after they are built...."

"Conclusion: Prospects for a More Accountable FCC

Clearly, the FCC’s NEPA process falls short of what NEPA and Council on Environmental Quality require.

• It ignores major federal actions requiring environmental review, such as its distribution to industry of billions of dollars that support build-outs for updated wireless service, or improperly deems certain major federal actions non-major federal actions to circumvent NEPA.
• Its NEPA rules create an unsupported and overbroad categorical exclusion so that, for example, satellite licensing and submarine cable licensing are excluded from review.
• With little oversight or tracking, it delegates environmental review of NEPA determinations to industry proponents of the project.
• It fails to vigorously enforce its rules so that industry noncompliance is rampant.
• It fails to provide adequate notice and opportunities for public comment.
• It fails to make environmental documents, including radio frequency emissions studies, publicly available or readily accessible.
• It routinely ignores or dismisses public comments and concerns and places an unfair burden of proof on the public when it raises concerns.

These practices serve to facilitate deployment for carriers while ignoring environmental rules and the public. Besides environmental costs, the FCC’s approach bespeaks a lack of transparency and accountability that undermines good governance and erodes democracy. It also bespeaks an agency completely captured by the entities it is tasked with regulating.

Recent Biden-era NEPA implementing rules 60 require agencies to revisit their NEPA rules and procedures by September 2023. 61 They also require that the agencies have the capacity to comply with NEPA, 62 something the FCC has to date lacked. Perhaps when Council on Environmental Quality reviews the FCC’s procedures this time, it will scrutinize the rules more carefully and hold the agency to a higher standard for NEPA compliance."

​https://www.tandfonline.com/doi/abs/10.1080/00139157.2022.2131190​

--

The Corporate Takeover of the Trump-FCC Is in Full Attack Mode

Bruce Kushnick, HuffPost, Nov 9, 2017   (Part 1 of 2)

https://www.huffingtonpost.com/entry/the-corporate-takeover-of-the-trump-fcc-is-in-full_us_5a041fb3e4b055de8d096ab0

The Trump-FCC-AT&T-Et Al. Plan: The Insidious “Wheel of Mis-Fortune”

Bruce Kushnick, HuffPost, Nov 10, 2017   (Part 2 of 2)

https://www.huffingtonpost.com/entry/the-trump-fcc-att-et-al-plan-the-insidious-wheel_us_5a055a13e4b0ee8ec3694081

Bruce Kushnick is the Executive Director of New Networks Institute (NNI), which was established in 1992, and a founding member of the IRREGULATORS, and has been a telecommunications analyst and visionary for over 35 years. During his career he has predicted that the addition of new technologies and networks would change the way we used the phone networks and he helped launch numerous interactive information markets and services that have now become commonplace.

http://newnetworks.com/about-bruce-kushnick/ 

--

June 26, 2015

Captured agency: How the Federal Communications Commission is dominated by the industries it presumably regulates

Alster, Norm. Captured agency: How the Federal Communications Commission is dominated by the industries it presumably regulates. Cambridge, MA:  Edmund J. Safra Center for Ethics, Harvard University.  2015. 

PDF: http://bit.ly/FCCcaptured  (free)
Kindle: http://amzn.to/1SQThCU ($0.99 -- check out the book reviews)

Introduction

This exposé provides insight into how the FCC became a victim of regulatory capture by industry and the implications of these corrupting influences for our health and safety, our privacy, and our wallets. 

This book concludes with a series of recommendations by its author, Norm Alster, an investigative journalist, who has written for the New York Times, Forbes, Business Week, and Investor’s Business Daily.  He wrote this book while serving as a journalism fellow with the Investigative Journalism Project at Harvard University.

Following are some excerpts that pertain to the wireless radiation industry and its corrupting influences on the FCC. I encourage you to read Mr. Alster's entire treatise.

Excerpts

A detailed look at FCC actions—and non-actions—shows that over the years the FCC has granted the wireless industry pretty much what it has wanted.

Money—and lots of it—has played a part ... In all, CTIA, Verizon, AT&T, T-Mobile USA, and Sprint spent roughly $45 million lobbying in 2013. Overall, the Communications/Electronics sector is one of Washington‘s super heavyweight lobbyists, spending nearly $800 million in 2013-2014, according to CRP data.

As a result, consumer safety, health, and privacy, along with consumer wallets, have all been overlooked, sacrificed, or raided due to unchecked industry influence …. Most insidious of all, the wireless industry has been allowed to grow unchecked and virtually unregulated, with fundamental questions on public health impact routinely ignored. Industry control, in the case of wireless health issues, extends beyond Congress and regulators to basic scientific research. And in an obvious echo of the hardball tactics of the tobacco industry, the wireless industry has backed up its economic and political power by stonewalling on public relations and bullying potential threats into submission with its huge standing army of lawyers. In this way, a coddled wireless industry intimidated and silenced the City of San Francisco, while running roughshod over local opponents of its expansionary infrastructure.

… 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.

Graphic: The revolving door between the FCC and industry

Tom Wheeler, former Head of CTIA & NCTA, is now FCC Chair.

Meredith Atwell Baker, former FCC Commissioner, is now head of CTIA.

Michael Powell, former FCC Chair, is now head of NCTA.

Jonathan Adelstein, former FCC Commissioner, is now head of PCIA, the Wireless Infrastructure Association.

Graphics: Top House and Senate recipients of cellular industry campaign contributions 

It all begins with passage of the Telecommunications Act of 1996, legislation once described … as “the most lobbied bill in history.” Late lobbying won the wireless industry enormous concessions from lawmakers, many of them major recipients of industry hard and soft dollar contributions. Congressional staffers who helped lobbyists write the new law did not go unrewarded. Thirteen of fifteen staffers later became lobbyists themselves.

In preempting local zoning authority—along with the public‘s right to guard its own safety and health—Congress unleashed an orgy of infrastructure build-out. Emboldened by the government green light and the vast consumer appetite for wireless technology, industry has had a free hand in installing more than 300,000 sites. Church steeples, schoolyards, school rooftops, even trees can house these facilities.

In a 2010 review of research on the biological effects of exposure to radiation from cell tower base stations, B. Blake Levitt and Henry Lai found that “some research does exist to warrant caution in infrastructure siting” ….

Beyond epidemiological studies, research on a wide range of living things raises further red flags. A 2013 study by the Indian scientists S. Sivani and D. Sudarsanam reports: “Based on current available literature, it is justified to conclude that RF-EMF [electromagnetic fields] radiation exposure can change neurotransmitter functions, blood-brain barrier, morphology, electrophysiology, cellular metabolism, calcium efflux, and gene and protein expression in certain types of cells even at lower intensities.”

… Citing other studies—often industry-funded—that fail to establish health effects, the wireless industry has dismissed such concerns. The FCC has typically echoed that position.

… since the passage of the 1996 law, the very opposite has occurred. Again and again both Congress and the FCC have opted to stiffen—rather than loosen—federal preemption over local zoning authority ….

… would consumers‘ embrace of cell phones and Wi-Fi be quite so ardent if the wireless industry, enabled by its Washington errand boys, hadn‘t so consistently stonewalled on evidence and substituted legal intimidation for honest inquiry?

The FCC in 1997 sent the message it has implicitly endorsed and conveyed ever since: study health effects all you want. It doesn‘t matter what you find. The build-out of wireless cannot be blocked or slowed by health issues.

… federal preemption is granted to pretty much any wireless outfit on just one simple condition: its installations must comply with FCC radiation emission standards. In view of this generous carte blanche to move radiation equipment into neighborhoods, schoolyards and home rooftops, one would think the FCC would at the very least diligently enforce its own emission standards. But that does not appear to be the case.

Indeed, one RF engineer who has worked on more than 3,000 rooftop sites found vast evidence of non-compliance. Marvin Wessel estimates that “10 to 20% exceed allowed radiation standards.” With 30,000 rooftop antenna sites across the U.S. that would mean that as many as 6,000 are emitting radiation in violation of FCC standards. Often, these emissions can be 600% or more of allowed exposure levels, according to Wessel.

The best ally of industry and the FCC on this (and other) issues may be public ignorance.

An online poll conducted for this project asked 202 respondents to rate the likelihood of a series of statements … there was one statement of indisputable fact: “The U.S. Congress forbids local communities from considering health effects when deciding whether to issue zoning permits for wireless antennae,” the statement said.

Though this is a stone cold fact that the wireless industry, the FCC and the courts have all turned into hard and inescapable reality for local authorities, just 1.5% of all poll respondents replied that it was “definitely true.”

… many respondents claim they would change behavior—reduce wireless use, restore landline service, protect their children—if claims on health dangers of wireless are true.

… in May 2015, more than 200 scientists boasting over 2,000 publications on wireless effects called on global institutions to address the health risks posed by this technology.

Some have suggested that the health situation with wireless is analogous to that of tobacco before court decisions finally forced Big Tobacco to admit guilt and pay up.

It seems significant that the responses of wireless and its captured agency—the FCC—feature the same obtuse refusal to examine the evidence. The wireless industry reaction features stonewalling public relations and hyper aggressive legal action. It can also involve undermining the credibility and cutting off the funding for researchers who do not endorse cellular safety. It is these hardball tactics that look a lot like 20th century Big Tobacco tactics. It is these hardball tactics—along with consistently supportive FCC policies—that heighten suspicion the wireless industry does indeed have something to hide.

So how does the FCC handle a scientific split that seems to suggest bias in industry-sponsored research?

In a posting on its Web site that reads like it was written by wireless lobbyists, the FCC chooses strikingly patronizing language to slight and trivialize the many scientists and health and safety experts who‘ve found cause for concern. In a two page Web post titled “Wireless Devices and Health Concerns,” the FCC four times refers to either “some health and safety interest groups,” “some parties,” or “some consumers” before in each case rebutting their presumably groundless concerns about wireless risk. Additionally, the FCC site references the World Health Organization as among those organizations who‘ve found that “the weight of scientific evidence” has not linked exposure to radiofrequency from mobile devices with ”any known health problems.”

Yes, it‘s true that the World Health organization remains bitterly divided on the subject. But it‘s also true that a 30 member unit of the WHO called the International Agency for Research on Cancer (IARC) was near unanimous in pronouncing cell phones “possibly carcinogenic” in 2011. How can the FCC omit any reference to such a pronouncement? Even if it finds reason to side with pro-industry scientists, shouldn‘t this government agency also mention that cell phones are currently in the same potential carcinogen class as lead paint?

Cell phones are not the only wireless suspects. Asked what he would do if he had policy-making authority, Dr. Hardell swiftly replied that he would “ban wireless use in schools and pre-schools. You don‘t need Wi-Fi,” he noted.

So what is the FCC doing in response to what at the very least is a troubling chain of clues to cellular danger? As it has done with wireless infrastructure, the FCC has to this point largely relied on industry “self-regulation.” Though it set standards for device radiation emissions back in 1996, the agency doesn‘t generally test devices itself. Despite its responsibility for the safety of cell phones, the FCC relies on manufacturers‘ good-faith efforts to test them. Critics contend that this has allowed manufacturers undue latitude in testing their devices.

The EPA, notably, was once a hub of research on RF effects, employing as many as 35 scientists. However, the research program was cut off in the late 80s during the Regan presidency. [Former EPA Scientist, Carl] Blackman says he was personally “forbidden” to study health effects by his “supervisory structure.”

Blackman is cautious in imputing motives to the high government officials who wanted his work at EPA stopped. But he does say that political pressure has been a factor at both the EPA and FCC: “The FCC people were quite responsive to the biological point of view. But there are also pressures on the FCC from industry.” The FCC, he suggests, may not just be looking at the scientific evidence, “The FCC‘s position—like the EPA‘s—is influenced by political considerations as well.”

Still, the FCC has ultimate regulatory responsibility and cannot indefinitely pass the buck on an issue of fundamental public health. Remarkably, it has not changed course despite the IARC classification of cell phones as possibly carcinogenic, despite the recent studies showing triple the glioma risk for heavy users, despite the floodtide of research showing biological effects, and despite even the recent defection of core industry booster Alex Lerchl. It is the refusal of both industry and the FCC to even acknowledge this cascade of warning signs that seems most incriminating.

This is a very rich industry that does not hesitate to outspend and bully challengers into submission. Meanwhile, amidst the legal smoke and medical confusion, the industry has managed to make the entire world dependent on its products. Even tobacco never had so many hooked users.

Such sustained success in the face of medical doubt has required industry to keep a lid on critics and detractors. Many scientists who‘ve found real or potential risk from the sort of microwave radiation emanating from wireless devices have learned there is a price to be paid for standing up to the industry juggernaut. A few prominent examples …

The FCC‘s network of corruption doesn‘t just shield industry from needed scrutiny and regulation on matters of public health and safety. Sometimes it just puts its hand directly into the public pocket and redistributes that cash to industry supplicants …

The General Accounting Office (GAO) has issued several reports citing fraud, waste and mismanagement, along with inadequate FCC oversight of the subsidy program. Bribery, kickbacks and false documentation can perhaps be expected in a handout program mandated by Congress and only indirectly supervised by the FCC.

[The "subsidy program," the Universal Service Fund, subsidizes various technology programs at public cost.]

Fraud—as pervasive and troubling as it has been—is just one of the problems with the programs of universal service. It may not even be the fundamental problem. More fundamental issues concern the very aim, logic and efficiency of programs to extend broadband and wireless technology at public expense. Though the aims of extending service to distant impoverished areas seem worthy on the surface, there are many reasons to think the major beneficiaries of these programs are the technology companies that win the contracts.

… the FCC, prodded by an industry ever on the lookout for incremental growth opportunities, is ignoring the health of youngsters to promote expanded Wi-Fi subsidies in schools across the U.S.

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.

… the auctions of electromagnetic spectrum, used by all wireless communications companies to send their signals, have yielded nearly $100 billion in recent years. The most recent auction to wireless providers produced the unexpectedly high total of $43 billion. No matter that the sale of spectrum is contributing to a pea soup of electromagnetic "smog" whose health consequences are largely unknown. The government needs money and Congress shows its appreciation with consistently pro-wireless policies.

Science is often the catalyst for meaningful regulation. But what happens when scientists are dependent on industry for research funding? Under pressure from budget cutters and deregulators, government funding for research on RF health effects has dried up. The EPA, which once had 35 investigators in the area, has long since abandoned its efforts.85 Numerous scientists have told me there‘s simply no independent research funding in the U.S. They are left with a simple choice: work on industry-sponsored research or abandon the field.

… an FCC with public interest commissioners is an idea worth consideration. It would at least require party apologists to defend how they so consistently champion the moneyed interests that have purchased disproportionate access and power in Washington.

Cellphone Industry Product Liability Lawsuit

On April 25, 2023, Judge Irving disallowed the testimony of all six expert witnesses who testified for the 13 plaintiffs who suffered from brain tumors in this lawsuit filed against the telecom industry: Murray et al. v. Motorola et al.; case no. 2001-CA-008479-B.

See Microwave News for a detailed summary of the case and a discussion of the judicial system's inability to resolve complex scientific issues in a fair manner (https://www.microwavenews.com/news-center/judge-bars-expert-witnesses).

The website for the Superior Court of the District of Columbia contains a case summary, events and orders of the court, and information about the parties in the case and their legal representation at https://bit.ly/3AWHArL.

Sep 22, 2022

Cell phone-brain tumor case finally goes to trial

A major lawsuit originally filed in 2001 by individuals who got brain cancer from their cell phones is being heard in the D.C. Superior Court before Judge Alfred S. Irving (Murray et al. v. Motorola et al.; case no. 2001 CA 008479 B). The evidentiary hearings for this multi-plaintiff case are being held from September 12 to September 30, 2022.

 

This case has dragged on for 21 years due to delaying tactics and appeals by the defendants. The defendants constitute much of the telecommunications industry including Verizon, AT&T, T-Mobile, Sprint, Motorola, Samsung, Nokia, Qualcomm, the CTIA, the IEEE, the FCC, and many other telecom companies. In the interim many plaintiffs have died. 

 

The hearings begin weekdays at 9:30 A.M. ET. The public can bear witness to this historic case: 

Option 1: Dial 844-992-4726, meeting ID 129 685 3445#, then press # again if asked for another code. 

Option 2: Open your web browser in Google Chrome and copy and paste the following URL or click: https://dccourts.webex.com/meet/ctb518. You will be connected to the waiting room or the live WebEx session. If this is your first time connecting to a WebEx session, you may receive a notification requesting that you download the WebEx program to your computer.  When prompted, click “Join Meeting” to enter the session.

--

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.

--


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