[00:00:00] Speaker 03: Case number 20-1025 et al. [00:00:01] Speaker 02: Environmental Health Trust et al. [00:00:05] Speaker 02: Petitioners versus Federal Communications Commission and United States of America. [00:00:10] Speaker 02: Mr. McCullough for the petitioners, Ms. [00:00:12] Speaker 02: Boysel for the respondents. [00:00:15] Speaker 01: Mr. McCullough, good morning. [00:00:16] Speaker 01: Please proceed. [00:00:18] Speaker 00: Good morning. [00:00:18] Speaker 00: May it please the court. [00:00:20] Speaker 00: I'm W. Scott McCullough presenting argument on behalf of the 14 petitioners in these consolidated cases. [00:00:27] Speaker 00: One of the petitioners recently contacted the FCC to seek redress for injuries she attributes to RF exposures. [00:00:34] Speaker 00: The commission representative said, we don't deal with humans, only frequencies, and hung up. [00:00:40] Speaker 00: That conversation encapsulates the FCC's approach here. [00:00:44] Speaker 00: By closing the inquiry, the commission failed its duty under the Communications Act to consider all potential health and safety impacts of radio frequency emissions on humans. [00:00:54] Speaker 00: It ignored over 1,000 peer-reviewed studies showing that exposure to non-thermal radiation at authorized levels evokes a clear biological response beyond mere tissue, and it leads to multiple forms of harm. [00:01:09] Speaker 00: It ignored direct human evidence of current injury. [00:01:12] Speaker 00: It failed to comply with the APA and NEPA for similar reasons. [00:01:17] Speaker 00: The commission has a substantive duty under the act to have and maintain adequate admission limits. [00:01:22] Speaker 04: beyond. [00:01:22] Speaker 04: Can I ask you a question about standard of review? [00:01:25] Speaker 04: You say that we shouldn't give the commission any heightened deference in this case, citing Fox television among other cases. [00:01:35] Speaker 04: But can you point me to any instance where we or the Supreme Court have not given heightened deference to an agency decision involving scientific judgments? [00:01:49] Speaker 00: Well, there are various levels of discretion. [00:01:52] Speaker 00: that are given to agencies, depending on the circumstances. [00:01:56] Speaker 00: This court and the Supreme Court has ruled that in the context of a petition for rulemaking, there is very high discretion. [00:02:05] Speaker 00: The problem here is this was not a petition for rulemaking. [00:02:09] Speaker 00: Indeed, if you look at what happened in the inquiry, the commission did engage in rulemaking functions. [00:02:16] Speaker 00: It established requirements. [00:02:19] Speaker 00: It extended its 1996 rules. [00:02:22] Speaker 00: to situations, usage, and indeed even frequencies that were not covered by those. [00:02:28] Speaker 00: So it was functionally engaging in rulemaking here. [00:02:32] Speaker 00: And that's the level of deference that should be applied. [00:02:35] Speaker 00: But even under the highest level of deference, the commission still has to engage in reason decision-making. [00:02:41] Speaker 00: It still has to address all the material issues. [00:02:44] Speaker 00: It still has to respond to material conflict. [00:02:49] Speaker 00: it has to look at the entire record and explain it. [00:02:53] Speaker 03: That sounds a lot like the standard from if we were reviewing after notice and comment rulemaking, whether they had sufficiently explained their final position and responded to substantial comments and concerns and addressed the record as a whole. [00:03:11] Speaker 03: What I'm struggling with is we're not at that stage. [00:03:15] Speaker 03: We're at the should they [00:03:17] Speaker 03: engage in rulemaking at all. [00:03:19] Speaker 03: And I understand your arguments about things that they didn't respond to with much of any sufficiency. [00:03:27] Speaker 03: But I'm searching for case law or precedent that says, in this context, how much they have to say about contrary evidence in the record. [00:03:41] Speaker 00: Well, my first point is that [00:03:45] Speaker 00: regardless, even if you are giving them the highest death that is given under any circumstances, which we think they were engaged, they were engaging in rulemaking here. [00:03:55] Speaker 03: Okay, let's assume I don't let's assume this for these purposes. [00:03:58] Speaker 03: Look at our, we have a body of case law on petitions for rulemaking and how inaction or denial of those is treated. [00:04:06] Speaker 03: So within that body of case law, can you explain to me what our rule would be that they violated here? [00:04:15] Speaker 00: This was not a petition for rulemaking. [00:04:17] Speaker 00: This was a proceeding. [00:04:18] Speaker 03: I understand, but I think that's the most analogous one for this stage. [00:04:22] Speaker 00: And it was very much like in the Fox case, a notice of inquiry. [00:04:27] Speaker 00: And in that case, this court did not give the highest level of deference. [00:04:34] Speaker 00: But no matter how much deference you give them, the problem here is you just simply cannot say that the six paragraphs the commission dedicated [00:04:43] Speaker 00: to addressing the inquiry can adequately deal with all of the evidence in this case. [00:04:50] Speaker 00: It did not mention all of the 1,000 peer-reviewed studies. [00:04:56] Speaker 00: It gave scant mention to only three items, the RASMENI, the NTP, and the BIONITION. [00:05:06] Speaker 03: And it dismissed by- These are the ones you sort of rely on most heavily, right? [00:05:10] Speaker 00: Well, we rely on those, but we also very much rely on the underlying science and the studies that were used. [00:05:19] Speaker 03: They don't have to address every submission. [00:05:21] Speaker 03: Can we agree on that? [00:05:22] Speaker 03: They don't have to respond. [00:05:23] Speaker 00: They do not have to address every submission. [00:05:25] Speaker 00: They have to address every material submission. [00:05:29] Speaker 03: Is that true in this state? [00:05:31] Speaker 03: Where have we said at this stage, as opposed to, again, at the end of notice and comment rulemaking, that they have to respond to every material submission? [00:05:40] Speaker 00: We are not contending that the commission had to go by every single one of the thousand. [00:05:45] Speaker 03: You just said to me every material one. [00:05:47] Speaker 03: So now I'm asking you, where have we said that at this stage? [00:05:51] Speaker 00: I apologize. [00:05:55] Speaker 00: I think the Fox case stands for that proposition. [00:05:58] Speaker 00: But no matter what scale of discretion. [00:06:02] Speaker 03: Can you tell me which age on the Fox case you're relying on? [00:06:27] Speaker 03: I'm sorry, I don't mean to hold you up. [00:06:29] Speaker 00: And I do apologize. [00:06:31] Speaker 00: Of course, the court addresses all of these things throughout the entire Fox case. [00:06:40] Speaker 03: If there's particular language or page you want us to focus on, maybe you could just tell us at rebuttal. [00:06:44] Speaker 03: I don't want to hold up your argument here. [00:06:45] Speaker 03: I'm sorry, I thought maybe you had something in particular in mind. [00:06:49] Speaker 00: Well, I'll be happy to supply a post submission on this. [00:06:53] Speaker 00: But you know, [00:06:55] Speaker 00: The real and fundamental point here is that the commission does owe some duty. [00:07:01] Speaker 00: Substantively, it recognized that it had a duty when it opened the inquiry to give a full examination and explain its rationale and assure the public. [00:07:12] Speaker 00: In order to do that, it had to give some analysis to the evidence in this case. [00:07:20] Speaker 00: It did not mention a single one of these other studies. [00:07:24] Speaker 00: All that it did [00:07:25] Speaker 00: was mentioned the bio initiative report and then dismiss it because it did not solve the problem of being able to also still provide service. [00:07:37] Speaker 00: It did not get into the underlying science that shows the level at which there are adverse impacts from exposure. [00:07:45] Speaker 04: Can we talk about the role of the FDA here because the order said that [00:07:53] Speaker 04: No expert health agency expressed concern about the conditions, radio frequency exposure limits, and that the FDA said no changes were warranted in that Congress tasked the FDA with evaluating the health effects of radiation. [00:08:10] Speaker 04: And that's something that the FCC also argues in their brief. [00:08:19] Speaker 04: So [00:08:20] Speaker 04: what was wrong with the FCC relying on the FDA in this case? [00:08:28] Speaker 00: It is permissible for an agency with jurisdiction to rely on agencies with expertise, but as was the case in the city of Boston, [00:08:39] Speaker 00: the city of Boston case, the agency with jurisdiction, when it looks to the agency with expertise, what that does is require the agency to expertise with expertise to itself explain its rationale and how it went about this. [00:08:55] Speaker 00: If you compare the FDA response here to the analysis that the court looked at in the city of Boston, you will find a magnificent difference. [00:09:05] Speaker 00: The problem also is the FDA [00:09:08] Speaker 00: was concerned, its letters, its short missives here looked only at cancer and only with cell phones. [00:09:17] Speaker 00: It did not look at all of the other adverse effects that the evidence shows occur here beyond just cancer. [00:09:27] Speaker 00: Finally, I do need to point out that the FDA is not necessarily the agency with expertise. [00:09:34] Speaker 00: The NTP study was [00:09:37] Speaker 00: contracted by the FDA. [00:09:40] Speaker 00: It looked to another agency within the Department of Health and Human Services, the NTP. [00:09:47] Speaker 00: Presumably that's the agency with expertise. [00:09:51] Speaker 00: And so, you know, I think if you want to find the agency with expertise here, it would be the NTP. [00:09:58] Speaker 00: I will point out that the NIEHS, yet another DHHS agency, conducted a peer review of the NTP study. [00:10:07] Speaker 00: in which the criticisms, as short as they were, by the FDA were considered. [00:10:13] Speaker 00: And that peer review panel conducted by the NIHCS, another sister agency, rejected the FDA's concerns and in fact elevated some of the things that were found in the NTP study. [00:10:27] Speaker 03: So the FCC here relied heavily on the FDA and its analysis because of their medical expertise. [00:10:45] Speaker 03: Have you ever had an opportunity? [00:10:47] Speaker 03: Did you have an opportunity? [00:10:48] Speaker 03: Is there any procedure by which you could [00:10:53] Speaker 03: either challenge the FDA or go to the FDA and prompt them to look at your medical evidence and change their position. [00:11:03] Speaker 03: It seems this is a very odd statute and that they have the technological role, but they don't have the medical knowledge and you're asserting [00:11:10] Speaker 03: injuries that are medical injuries, physical injuries to bodies, in which the FDA seems to have more expertise. [00:11:22] Speaker 03: It almost seems like the one you should be talking to is the FDA. [00:11:27] Speaker 03: Have you talked to the FDA? [00:11:28] Speaker 03: Have you given submissions to them? [00:11:31] Speaker 03: Did they look at these types of reports? [00:11:35] Speaker 00: There is no information in the agency record here on that point. [00:11:40] Speaker 00: There is information in the record where people near the end of this proceeding responded to what the FDA director said. [00:11:52] Speaker 00: But we do have a fascinating jurisdictional situation here. [00:11:56] Speaker 00: There is no direct way to challenge the FDA determination. [00:12:00] Speaker 00: But since the commission was relying so heavily on the FDA, I think what that means is you now need to look at the FDA letter and see what it addressed and whether [00:12:09] Speaker 00: The FDA letter reflects some kind of reason decision-making. [00:12:14] Speaker 00: And we submit it does not. [00:12:16] Speaker 00: It is just as cursory as the FCC's six paragraphs here. [00:12:21] Speaker 03: As I read the FDA submission, it was focused exclusively on cell phones and didn't address other devices. [00:12:29] Speaker 00: It was. [00:12:30] Speaker 00: It was. [00:12:30] Speaker 00: It was exclusively on cell phones and again, exclusively on cancer. [00:12:34] Speaker 00: It did not address some of the other NTP findings. [00:12:38] Speaker 00: on other adverse biological effects. [00:12:42] Speaker 00: And I do need to point out that the commission's representation that all of the other sister agencies either did not object or agree is just belied by the record. [00:12:51] Speaker 00: The Interior Department has expressed concerns. [00:12:55] Speaker 00: The EPA has expressed concerns with the thermal only approach. [00:12:59] Speaker 00: Obviously, the NIEHS doesn't agree. [00:13:03] Speaker 00: We have the access board findings. [00:13:05] Speaker 00: We have the CDC recognition of radiation sickness as a disease. [00:13:11] Speaker 00: It is just simply not correct to say that the federal government and all of its agencies is entirely aligned on this question. [00:13:19] Speaker 04: But no one has proposed any specific change in standard, right? [00:13:28] Speaker 04: And you can't point to any international standard [00:13:32] Speaker 04: that is stricter or more restrictive than the U.S. [00:13:36] Speaker 04: standard? [00:13:37] Speaker 04: There are. [00:13:38] Speaker 04: Am I correct on both of those statements? [00:13:40] Speaker 00: There are some more restrictive standards and there are some more all-encompassing standards. [00:13:47] Speaker 04: What more restrictive standards did you cite in the brief? [00:13:51] Speaker 00: Well, for example, I can certainly cite to the commission order itself, although it is not in the notice of inquiry. [00:13:59] Speaker 00: As the commission notes in paragraphs 122 through paragraphs 124, when it comes to some of the frequencies that the commission applied its regulations to, which were not in fact covered by the 1996 ones, specifically under 100 kilohertz and over 100 gigahertz, some of the international standards are more restrictive [00:14:27] Speaker 00: especially at the lower end of the band than the commissions ones are here. [00:14:35] Speaker 00: If you take a look at, for example, and you may not have it in front of you, but note 328, when they're talking about a neurostimular responses to low frequency emissions below 100 kilohertz. [00:14:58] Speaker 00: The commission actually recognizes the very symptoms that we recite for what we call radiation signals. [00:15:07] Speaker 00: And the international organizations have made special provision for that. [00:15:13] Speaker 00: In the part of the notice of proposed rulemaking, the commission proposes to make some changes to its regulations to more or less align itself with these international regulations. [00:15:27] Speaker 00: but it did not do so here in the notice of inquiry. [00:15:31] Speaker 00: At present, under the rules, the purposes of these regulations and these frequencies where the commission had not here to for applied its rules in 1996, these rules now apply as a result of the notice of inquiry. [00:15:50] Speaker 00: The commission did indeed extend [00:15:53] Speaker 00: It's 1996 rules to activities, frequencies, technologies that were not addressed in the 1996 orders. [00:16:01] Speaker 00: And that is why we say this was functionally, although not in name, a rulemaking. [00:16:08] Speaker 00: It made new rules for all of these new things that were not contemplated in 1996. [00:16:15] Speaker 04: I understand that argument, but what the FCC says is that basically in all of the comments, there's a lot of sound and fury, but there's no specific recommendation other than one, I guess, from the bio initiative report that says set the limits a million times more restrictive or a billion times more restrictive. [00:16:41] Speaker 04: and they say that the technology can't work if those levels are that low. [00:16:48] Speaker 04: I didn't see any rebuttal to that point. [00:16:52] Speaker 04: And the only rebuttal I saw in your brief and the reply was, well, the bio initiative report suggested a path forward. [00:17:02] Speaker 04: Well, when I read that report, the path forward I see is, well, there needs to be more study done. [00:17:09] Speaker 04: but there's no specific regulatory kind of limit change that it proposes. [00:17:21] Speaker 04: So do you disagree with anything that I've said there? [00:17:29] Speaker 04: And if not, why isn't that undermining your position? [00:17:38] Speaker 00: I see that I'm somewhat over my opening time. [00:17:41] Speaker 00: May I still respond? [00:17:42] Speaker 00: Go ahead. [00:17:42] Speaker 01: Of course. [00:17:43] Speaker 01: Go ahead. [00:17:44] Speaker 00: The first step to solving the problem is recognizing that there is one. [00:17:49] Speaker 00: And the Bioinitiative's main point was there are these significant aspects of the problem that the thermal-based rules do not address. [00:18:00] Speaker 00: And that is that there are biological responses that occur [00:18:07] Speaker 00: There's biological responses, many of which are adverse when you are exposed to authorized emissions. [00:18:14] Speaker 00: The Bioinitiative said, based on its analysis of the studies, here is the point at which there is a response. [00:18:23] Speaker 00: The Bioinitiative was not necessarily recommended that emission limits be taken immediately all the way down to the point where there is a biological response. [00:18:36] Speaker 00: Their main point was you need to adjust your rules so that they are biologically based, not thermal based. [00:18:44] Speaker 00: It then recommended collaboration between the scientists who understand biological responses, the commission, and those who design networks to try to find the point where you could have services with less harm. [00:19:03] Speaker 00: And so the bio initiative was not saying take limits down all the way to this level. [00:19:09] Speaker 00: It was saying, recognize there is a biological response and let's find a way to adjust standards so that we lessen the harm while still maintaining the ability to provide service. [00:19:22] Speaker 04: How does that translate into error by the commission here? [00:19:26] Speaker 00: It does because what the commission demand [00:19:30] Speaker 00: in the inquiry and in the order, it said, we're not gonna pay attention to your science unless you also solve the service utility problem. [00:19:39] Speaker 00: And the entire point is there's two problems. [00:19:43] Speaker 00: The problem is the biological response. [00:19:46] Speaker 00: And then you have to figure out a way to address that within the context of being able to still provide service. [00:19:55] Speaker 00: This was a notice of inquiry, or at least it was supposed to be. [00:20:00] Speaker 00: in the actual rulemaking would be the time to find the actual emission levels that would serve both needs. [00:20:09] Speaker 00: And so the commission just completely misconstrued and misapplied what the bio initiative was saying. [00:20:16] Speaker 00: They were not saying take it down to this level. [00:20:18] Speaker 04: Okay, can I just interrupt you for a second because there's something that I thought was very interesting about the briefing here that I'm trying to get the take of both sides on. [00:20:29] Speaker 04: page 37 of the FCC's brief, they refer to 21 USC section 360 II. [00:20:41] Speaker 04: And as part of their argument that the FDA is really the [00:20:50] Speaker 04: the kind of expert agency on human health impact of radiation of this sort. [00:21:03] Speaker 04: And that particular statute references says that the FDA is supposed to kind of get this advice and expertise [00:21:16] Speaker 04: from a technical electronic product radiation safety standards committee, which is created a couple of sections later in 360 KK subparagraph F. [00:21:32] Speaker 04: and that committee is supposed to have, you know, of diverse representation of people from industry and scientists and medical professionals, et cetera, et cetera, to basically kind of do what you're saying that should, you know, undertake the sort of analysis that you say should be done. [00:21:55] Speaker 04: It's interesting to me, though, that you don't reference this committee at all in your briefing, [00:22:02] Speaker 04: It's also significant to me that the FCC doesn't reference that technical electronic product radiation safety standards committee in their briefing, even though that committee is supposed to take the lead on testing things like cell phones and the testing standards and the standards that they're supposed to meet. [00:22:30] Speaker 04: Why is it that you don't seem to think that this statute has any relevance or at least you don't talk about it in your briefing? [00:22:37] Speaker 00: We do not talk about that in our briefing because it has no relevance to this proceeding. [00:22:43] Speaker 00: We are dealing with the Communications Act, which has given to the commission the exclusive right to set emission levels for all point sources. [00:22:53] Speaker 00: The FDA's jurisdiction over some radiation-emitting devices is far more limited than that. [00:23:00] Speaker 00: And while it is true that the FDA itself would have jurisdiction to establish rules upon proper petition, that would be the secretary of the FDA, not necessarily the division that handles these matters that Dr. Shurer is with. [00:23:20] Speaker 00: And so we have not only a procedural and jurisdictional problem, there's also just, nobody seems to have invoked [00:23:29] Speaker 00: or sought a rulemaking from the FDA that would have set in process the committees and such like that are described in the statute you cite. [00:23:40] Speaker 00: We are dealing with the- Does that committee exist or not? [00:23:44] Speaker 00: I beg your pardon? [00:23:45] Speaker 03: Does that FDA committee exist or not? [00:23:48] Speaker 00: There is no evidence in the record on that as far as I know. [00:23:51] Speaker 03: Do you just know whether it exists? [00:23:52] Speaker 00: I do not know. [00:23:53] Speaker 00: I apologize. [00:23:56] Speaker 00: Remember, in this context and looking at it from more or less a NEPA perspective, the commission is trying to rely on the FDA as an agency with expertise where the commission is the agency with jurisdiction. [00:24:14] Speaker 00: And the problem is the FDA has not necessarily properly considered an agency with expertise under the environmental laws. [00:24:22] Speaker 00: It deals with human health, not the environment. [00:24:26] Speaker 00: And so, you know, I truly do think that the commission needed to look to far more than and rely on far more than a couple of letters from an FDA director. [00:24:39] Speaker 00: And once you look at those letters to begin with, they simply do not pass any kind of must for reason decision-making if this is what the entire case turns on. [00:24:49] Speaker 00: It does not at all compare to what this court approved in the city of Boston case to again cite that example. [00:24:55] Speaker 01: All right. [00:24:56] Speaker 01: If there are no more questions, then we'll give you some time in reply. [00:25:00] Speaker 01: We'll hear from Ms. [00:25:01] Speaker 01: Boyzel. [00:25:05] Speaker 02: Good morning. [00:25:06] Speaker 02: May it please the court? [00:25:07] Speaker 02: Ashley Boyzel for the Federal Communications Commission. [00:25:11] Speaker 02: As I think the panel recognizes, the FCC was not writing on a blank slate in this case. [00:25:16] Speaker 02: Instead, it was seeking scientific evidence and recommendations on the effectiveness of radio frequency emission limits that it adopted in 1996 and that have been upheld against judicial challenge twice before. [00:25:28] Speaker 02: As both this court and the Second Circuit have approved in making this evaluation, the FCC reasonably relied on the views of federal agencies with primary jurisdiction in public health, as well as recognized standards bodies. [00:25:42] Speaker 02: The FCC relied on substantial evidence. [00:25:44] Speaker 03: Yes, I mean, it's so. [00:25:47] Speaker 03: I guess I should back up. [00:25:49] Speaker 03: Do you know where this committee that Judge Wilkins reference within the FDA even exists and whether it has spoken on this issue. [00:25:55] Speaker 02: I'm not familiar with the committee or what its status is. [00:25:59] Speaker 03: So in the Notice of Inquiry, the FCC flagged that it wanted to get input, including from these expert federal agencies, sister agencies, information on what had changed since 1996, and that is the ubiquity of the devices, the different types of devices, the sheer volume of them. [00:26:25] Speaker 03: intervening developments in analysis of medical consequences and in both the introduction and then in even in your final decision here in your second report in order there's lots of discussion about how there's so many new devices and people are using multiple devices are using them way more people are using them and way more people are using them [00:26:51] Speaker 03: all the time or through extensive periods. [00:26:54] Speaker 03: This was even before the pandemic when we're now living on this stuff. [00:26:59] Speaker 03: But even before that, the amount of usage, the number of devices used often simultaneously, the age range of people who are using these and how long they're using them. [00:27:09] Speaker 03: That was all quite sensibly what the FCC asked for. [00:27:12] Speaker 03: The FDA came back and talked about cell phones and cancer. [00:27:18] Speaker 03: How was it reasonable for the FCC to rely so heavily on a response from the FDA that there's no indication relied on this specialized committee and did not address the very things you asked for information on, other devices, the use of multiple devices and physical harms other than cancer? [00:27:40] Speaker 03: How was that reasonable, even with the super deference you get at this stage? [00:27:45] Speaker 02: Well, first of all, we didn't rely exclusively on the FDA's representations about the state of the science. [00:27:51] Speaker 02: You're right that their statements spoke specifically about cell phones, although their public rely on that at all. [00:27:58] Speaker 03: I think it was said about cell phones, but that just simply didn't answer the question asked. [00:28:04] Speaker 03: So how was it reasonable to rely on it? [00:28:06] Speaker 03: I don't want to hear. [00:28:07] Speaker 03: I just want to know how it was reasonable to rely on something that was not responsive to the inquiry. [00:28:11] Speaker 02: For two reasons. [00:28:13] Speaker 02: One, cell phones are used in close proximity to the body and the power of an emission decreases exponentially with distance. [00:28:20] Speaker 02: So cell phones are the device that is creating the most radio frequency emission when compared to other devices and other base facilities. [00:28:31] Speaker 02: Second, we have aggregate limits that apply to fixed facilities. [00:28:37] Speaker 02: Those are set forth at 1.1307B3. [00:28:40] Speaker 03: And they require that all fixed facilities. [00:28:43] Speaker 03: I'm talking about watches, I'm talking about iPads. [00:28:47] Speaker 03: Okay, those are not fixed facilities. [00:28:49] Speaker 03: Sure. [00:28:50] Speaker 03: And then I'm also talking about just using a phone and holding it up to your ear. [00:28:54] Speaker 03: People don't use their phones, hardly use them for phone calls anymore. [00:28:58] Speaker 03: They're constantly in the hand. [00:29:00] Speaker 03: Not two centimeters away they're constantly in the hand and the fingers are constantly on them. [00:29:06] Speaker 03: And so I'm just trying to understand how the FDA coming back and talking about cell phones that are in a holster or nobody keeps them anymore, or in a purse. [00:29:15] Speaker 03: or they're not being used, and looking only at cancer, is it all relevant to an inquiry, again, into the effect of this radiation frequency from multiple devices that are used in entirely different ways now, an entirely different volume, and throughout the population, including children who live on iPads? [00:29:39] Speaker 02: So as I said, the FDA said in its letter at J8187 that it was engaged in an ongoing review of the evidence in this area. [00:29:47] Speaker 02: And then, as you say, it represented a specific conclusion with respect to the National Toxicology Program's research on cell phones. [00:29:55] Speaker 02: But that was coupled with representations in our termination of the notice of inquiry at J812 that the World Health Organization had found no substantiated adverse effects [00:30:04] Speaker 02: from fixed facilities. [00:30:05] Speaker 02: So this wasn't an inquiry that was limited generally. [00:30:08] Speaker 03: You are way more expert than me. [00:30:11] Speaker 03: Is an iPad a fixed facility? [00:30:13] Speaker 03: No, an iPad is not a fixed facility. [00:30:15] Speaker 03: Is a watch a fixed facility? [00:30:17] Speaker 03: No. [00:30:17] Speaker 03: Right. [00:30:18] Speaker 03: Is a wireless laptop a fixed facility? [00:30:21] Speaker 03: No, but when the notice of inquiry talked about the ubiquitous use of devices, was it talking about fixed facilities? [00:30:28] Speaker 03: No, not exclusively, but I was going to get to that. [00:30:30] Speaker 03: No, no, no, but I don't think that was... Okay, I get that, but I just said... I apologize for not being responsive. [00:30:34] Speaker 03: The fixed facility stuff to me at least doesn't feel responsive unless I'm misunderstanding it. [00:30:37] Speaker 03: I'm really curious about all these other devices. [00:30:42] Speaker 02: Absolutely. [00:30:42] Speaker 02: So with respect to mobile and portable devices, we said at paragraph 143 of the notice of inquiry and paragraph 67 of the order on review here that there didn't need to be aggregate limits, that we didn't have a concern about the aggregate effect of transmissions from these mobile and portable devices because they tend to be used. [00:31:04] Speaker 02: Sorry, I'm sorry. [00:31:05] Speaker 02: It's okay. [00:31:06] Speaker 02: It's 67. [00:31:09] Speaker 02: It's paragraph 67. [00:31:12] Speaker 02: It's JA 35 to 36. [00:31:19] Speaker 02: So we explained in that paragraph. [00:31:24] Speaker 02: that exposure from mobile and portable devices tends to be more localized exposure when they're held close to the body. [00:31:30] Speaker 02: That would cover things like a watch or a tablet held in the hand or a cell phone. [00:31:35] Speaker 02: And that exposure, because it's more localized, tends to, doesn't need to be aggregated because the whole body exposure is much more diffuse. [00:31:46] Speaker 02: So we addressed the fact that... What other expert agency was the one that addressed that for you? [00:31:55] Speaker 02: We were making that judgment in our own technical expertise that the effect of these emissions was not significant in the aggregate and that therefore there didn't need to be any kind of aggregate limit. [00:32:07] Speaker 03: But with respect to our reliance... [00:32:09] Speaker 03: Pardon me. [00:32:10] Speaker 03: How did you decide? [00:32:11] Speaker 03: I mean, these things are strapped onto the arms and in the hands, significant part of the day. [00:32:16] Speaker 03: How was it that you decided that that was not a significant change from what you had looked at in 1996? [00:32:21] Speaker 02: Well, there are no substantial adverse effects from exposures at the existing levels. [00:32:31] Speaker 02: So the fact that they're strapped on the wrist. [00:32:33] Speaker 03: And how did you find that? [00:32:35] Speaker 03: Was this through your 2.5 centimeter test? [00:32:39] Speaker 02: Well, no, I what I'm what I'm doing is referring to our explanation of why the existing limits continue to be sufficient. [00:32:47] Speaker 02: And what we said in terminating the notice of inquiry is that the scientific evidence and we relied on the FDA but we also referred to other expert organizations and bodies. [00:32:56] Speaker 02: that the scientific consensus had not changed. [00:32:59] Speaker 02: And I think it's a mistake to characterize what we did as relying exclusively on the FDA's conclusions, because that's not what we did here. [00:33:07] Speaker 02: We also looked to the views of, as I said, the World Health Organization at JA12, the International Commission on Non-Ionizing Radiation Protection, the National Toxicology Program, [00:33:20] Speaker 02: scientists themselves said, don't rely on this rat study and extrapolate to humans. [00:33:26] Speaker 02: So it was a broader inquiry and we engaged more broadly with the experts in this area in drawing the conclusion that there were no substantiated adverse effects. [00:33:38] Speaker 03: And your question, I think- Sorry, I'm in, I see what you're talking in some paragraphs section you say, [00:33:47] Speaker 03: People worry about cumulative ones, exposure from fixed RF sources will vary, but we're not talking about fixed RF sources. [00:33:54] Speaker 03: And so where do you say for non-fixed ones? [00:33:57] Speaker 03: I'm sorry, I'm not reading the paragraph maybe the way, I'm not reading it with your expertise. [00:34:02] Speaker 03: I'm missing something. [00:34:03] Speaker 03: Where are you talking about non-fixed in paragraph 67? [00:34:07] Speaker 02: We say that the location, let's see, sorry. [00:34:13] Speaker 02: When the RF sources are close to the body, they will be exposing smaller areas of the body at the end of that paragraph and separated sources will accordingly expose different areas of the body without overlap. [00:34:24] Speaker 02: That's just a scripting factually. [00:34:26] Speaker 02: If you keep reading. [00:34:27] Speaker 02: So it's 67 leads into paragraph 68. [00:34:30] Speaker 02: We note that the exposure from each portable or mobile device near a person will generally involve low total power absorption while being highly localized [00:34:38] Speaker 02: and will not result in significant contributions to whole body average. [00:34:41] Speaker 02: And what are you studying for that conclusion? [00:34:43] Speaker 03: I didn't see any authority cited or any study or any base, any explanation of how you came to that conclusion, other than that just conclusory statement. [00:34:53] Speaker 03: You're correct. [00:34:55] Speaker 02: Well, you're correct. [00:34:58] Speaker 02: How did we decide that the localized exposure would be absorbed in our multiple localized exposures for prolonged periods of time? [00:35:07] Speaker 02: how that would not be harmful. [00:35:10] Speaker 03: Yeah, how did you just hit it? [00:35:12] Speaker 02: Well, again, I think you have to link the observations here with the observations we made in concluding the notice of inquiry. [00:35:19] Speaker 02: You're correct. [00:35:20] Speaker 02: There is no footnote here. [00:35:21] Speaker 02: But if you go back to the resolution terminating the notice of inquiry, we said repeatedly that there was no evidence of any effect, not just cancer, any illness, from radio frequency emissions below our existing levels. [00:35:35] Speaker 02: And in fact, we said at, below at, and sometimes even above our existing levels. [00:35:40] Speaker 03: And that one said, sorry, can you point me to that paragraph where it said where it was addressing cumulative impacts? [00:35:49] Speaker 02: Again, I apologize if I'm not being responsive to your question, but the cumulative effects are addressed here in addition to referring back to findings that were not themselves cumulative. [00:36:03] Speaker 02: No, the scientific conclusions here are cumulative. [00:36:06] Speaker 02: The scientific studies that the FDA and others have looked at. [00:36:11] Speaker 03: No, the FDA didn't. [00:36:12] Speaker 03: The FDA was only talking about cell phones. [00:36:14] Speaker 03: That's my point. [00:36:15] Speaker 03: It's a very big record, better than me. [00:36:19] Speaker 03: There could very well be something where it was clear that you were relying on either your own [00:36:27] Speaker 03: determinations rather than just conclusions, or there's another FDA somewhere else or another agency talked about cumulative exposures from multiple devices over prolonged period of time for physical impacts other than cancer. [00:36:44] Speaker 03: And is that, you're telling me that was made at the beginning, cumulative? [00:36:49] Speaker 02: I don't know that we used the word cumulative in terminating the notice of inquiry, but [00:36:55] Speaker 02: The statement that we made. [00:36:59] Speaker 02: What paragraph are you talking about? [00:37:02] Speaker 03: Did the FDA ever talk about anything other than the cell phones? [00:37:06] Speaker 02: In its public statements, it makes broader statements about the science. [00:37:11] Speaker 03: I didn't only talk about cell phones. [00:37:13] Speaker 03: That was the only science that backed up, had to back it up, right? [00:37:16] Speaker 02: I think that most of the FDA statements were about cell phones, but again, those were supplemented by representations by other entities, what are the state of the science. [00:37:26] Speaker 02: Again, the World Health Organization and the International Commission for non ionizing radiation protection which also [00:37:33] Speaker 03: Pardon me? [00:37:35] Speaker 03: And they talk specifically about cumulative exposure from the use of multiple devices for prolonged periods of time. [00:37:41] Speaker 03: As you've noticed, this was the whole reason you had to notice when you created these changes. [00:37:45] Speaker 03: And they talked about those specifically. [00:37:48] Speaker 02: The studies that were conducted or the scientific conclusions reflect the conclusion that even the cumulative effects are not harmful to human health. [00:37:57] Speaker 03: These mobile devices, these wireless devices, not a fixed devices. [00:38:02] Speaker 02: Yes, because the only substantiated harm is a thermal harm at this point in time. [00:38:06] Speaker 02: And what we know is that at four watts per kilogram, we start to observe thermal changes. [00:38:13] Speaker 02: There are no substantiated adverse effects below that level. [00:38:19] Speaker 02: And as it is, our standards incorporate a substantial safety margin. [00:38:23] Speaker 02: They're 50 times safer than that four watts per kilogram. [00:38:27] Speaker 03: We're looking for thermal effects, but not looking for non-terminal effects, right? [00:38:32] Speaker 02: The limits address both kinds of effects because the only substantiated adverse effects are thermal ones. [00:38:40] Speaker 02: And we acknowledged evidence on the other side. [00:38:42] Speaker 02: We acknowledged that much of the record was not scientific. [00:38:45] Speaker 02: That which supported to constitute research evidence lacked any persuasive case as to its value or significance. [00:38:53] Speaker 02: We acknowledged three of the four major studies that petitioners rely on in their brief and explained why they didn't provide any basis to reevaluate our limits. [00:39:04] Speaker 02: And again, going back to the panel's questions at the start of opposing counsel's presentation, the standard of review is quite high here. [00:39:11] Speaker 02: This is not the kind of case that presents the rarest or most compelling of circumstances in which reversal is required. [00:39:19] Speaker 02: based our decision on substantial evidence as the Second Circuit and Cellular Phone Task Force and this court in EMR Network held, it was reasonable for us to rely on- Can I explain my problem? [00:39:32] Speaker 04: I'm just going to be very upfront with why I am inclined to rule against you. [00:39:38] Speaker 04: So I want you to tell me why I shouldn't have the concern that I do. [00:39:46] Speaker 04: So I misstated earlier when I said you referenced on page 37 of your brief, 21 USC 360II, it was page 23 of your brief. [00:39:58] Speaker 04: And you say that Congress directed the FDA to establish an electronic product radiation control program designed to protect the public health and safety from electronic product radiation. [00:40:14] Speaker 04: The statute that you cite there is section, you know, it's 21 USC section 360 II. [00:40:21] Speaker 04: When I read that, it says that basically the way that that is done is that a committee that is established in a cross-reference to 360 KK will be established that will review these standards for testing in emissions level. [00:40:41] Speaker 04: Okay? [00:40:42] Speaker 04: But you don't reference that committee anywhere, and I don't see anything about that committee mentioned in the administrative record. [00:40:53] Speaker 04: Then later on in your brief at page 37, you say not to worry because the FCC stands ready to consider changing exposure limits in inappropriate circumstances. [00:41:08] Speaker 04: And you refer to a radio frequency inter-agency working group that maintains a continuing dialogue between the FCC and the FDA about these issues. [00:41:20] Speaker 04: And that's referred to in a letter. [00:41:23] Speaker 04: Or you say that it's referred to in a letter. [00:41:27] Speaker 04: But when I read that letter, I don't see any mention of that working group. [00:41:34] Speaker 04: And I don't see anything in the record [00:41:38] Speaker 04: that says that that working group actually exists or looked at any of the evidence in this case. [00:41:47] Speaker 04: So the problem that I have is that you say that you're relying on the expertise of the FDA, but the entity that Congress specifically said to review this, this committee, you've given us no evidence that this committee has looked at any of this. [00:42:03] Speaker 04: And then you say that in the future, to the extent anything needs to be looked at, it's going to be looked at by this working group. [00:42:12] Speaker 04: But I don't see any evidence that the working group looked at anything this time. [00:42:18] Speaker 04: So why shouldn't I send it back for the relevant working groups and the FDA to look at this record? [00:42:28] Speaker 04: Tell me why I shouldn't, my vote shouldn't be to do that. [00:42:34] Speaker 02: So with respect to the working group, it does exist and it is an ongoing project. [00:42:40] Speaker 02: With respect to the omission of any reference to this committee in the order terminating the notice of inquiry, we did formally solicit the views of all expert agencies in the notice of inquiry at JA165. [00:42:54] Speaker 02: We made very clear that we intended to rely on them. [00:43:00] Speaker 02: We were very interested to hear their views and the views that we received we took into account and I think that that's all that's required here. [00:43:08] Speaker 02: We explained why our conclusions were what they were based on the representations. [00:43:13] Speaker 04: Is there anything in the record that says that the FDA asked [00:43:18] Speaker 04: this radio frequency interagency work group to review this and they weighed in or anything in the record that says that the technical standards, et cetera, committee that was created by statute reviewed any of this and weighed it. [00:43:36] Speaker 02: There's nothing that says that specifically. [00:43:39] Speaker 02: Pardon me. [00:43:40] Speaker 04: Does the answer no? [00:43:42] Speaker 02: The answer is no on that specific question, but I would just point your attention to J8187, where the FDA says explicitly, they acknowledge 5G specifically, which goes to Judge Millett's questions about the proliferation and ubiquity of personal devices. [00:43:56] Speaker 02: But they say FDA is responsible for the collection and analysis of scientific information that may relate to the safety of cell phones and other electronic products. [00:44:05] Speaker 04: So why shouldn't we as a court reviewing this say that at a minimum FDA should tell FCC and by extension tell the public and any court reviewing this that [00:44:20] Speaker 04: the expert bodies within it reviewed the materials that were submitted in response to the notice of inquiry, i.e., if we want to say this interagency work group is the right body, or if we want to say that the committee that Congress required the FDA to establish is the right body. [00:44:44] Speaker 04: But one of them, why shouldn't we at a minimum say before we believe that [00:44:50] Speaker 04: that we can allow kind of any sort of deference to the FCC relying on the FDA, we need to know that the right people at the FDA actually looked at the materials. [00:45:04] Speaker 02: Well, I think that there's nothing in the statute that suggests that the committee has to speak through the committee. [00:45:10] Speaker 02: I think that the FDA [00:45:12] Speaker 02: as the agency charged with keeping abreast of the science in this area can speak to the state of the science. [00:45:19] Speaker 02: And it does refer to its ongoing monitoring activities and its letter to the FCC at J8187. [00:45:26] Speaker 02: And this is extra record material and we're not relying on it for you to uphold the agency's decision, but the FDA did release a review of the scientific evidence in 2020 and its conclusions were consistent with the conclusions that the FCC drew here. [00:45:41] Speaker 04: No, we can't consider that. [00:45:43] Speaker 02: That's absolutely right. [00:45:45] Speaker 02: And we're not suggesting that you need to consider it to uphold the agency's decision. [00:45:48] Speaker 02: But I think it does confirm the centrality of the FDA to this area. [00:45:53] Speaker 03: It's not just that we don't know that they asked their experts. [00:45:56] Speaker 03: We don't know what they asked them, because all we got from the FDA is cell phones and cancer. [00:46:02] Speaker 03: Is it reasonable for the FCC to take the FDA's representations at face value without verifying that the relevant experts have looked at the questions that the FCC actually asked when they get a report back that only talks about cell phones and cancer? [00:46:20] Speaker 02: I think it is reasonable for the agency to do so. [00:46:22] Speaker 02: And I think that's what the court and cellular phone task force said. [00:46:27] Speaker 03: In our case, we specifically noted that what could make a difference is if circumstances change. [00:46:34] Speaker 03: We have that in there. [00:46:35] Speaker 03: And that circumstances could change over time, then there would need to be [00:46:39] Speaker 03: another look. [00:46:39] Speaker 03: And that was what you all flagged in your notice of inquiry was things have changed, including the ubiquity and multiplicity of devices. [00:46:49] Speaker 03: And then when the FCC gets an answer back, that simply isn't answering those questions. [00:46:54] Speaker 03: And then as Judge Wilkins has pointed out, doesn't even say we consulted the people who are in charge of studying these things. [00:47:03] Speaker 03: That's just seems to be, you get a lot of leash, but at some point that leash goes too far and becomes unreasonable without a little bit of follow-up by the FCC to make, to verify, just to pin down that the information is responsive. [00:47:20] Speaker 02: Well, I hear your concern again about the cumulative effects here, but I think the predicate question to any assessment of the cumulative effects is whether there's any adverse effect at all from a single device. [00:47:32] Speaker 02: And as I said, the only substantiated adverse effects are thermal, which would mean that cumulative effects wouldn't be something that could cause injury, at least under the substantiated credible scientific evidence as it stands now. [00:47:48] Speaker 04: And how do I know that the radio frequency interagency work group doesn't believe that there are non-thermal effects that should be regulated? [00:48:02] Speaker 04: that the committee that Congress told the FDA to create, this technical electronic product radiation safety standards committee, doesn't believe that there are non-thermal effects that need to be regulated or concerned. [00:48:24] Speaker 04: I mean, my point is that you're asking me to infer a negative, but without [00:48:33] Speaker 04: there being anything in the record that the agency that Congress said should look at this, the committee that Congress said should look at this, even looked at it. [00:48:46] Speaker 04: And then you refer to an interagency work group that you say looks at these things, even though there's nothing in the record about that work group or what they looked at or haven't looked at. [00:49:01] Speaker 02: Again, I think that we formally solicited the views of other entities with expertise in this area. [00:49:08] Speaker 02: We made very clear that we wanted to rely on them. [00:49:11] Speaker 02: We relied on the views of expert agencies in adopting these limits in the first place and no federal agency or body. [00:49:17] Speaker 02: Did you just solicit these committees or did you just solicit the FDA? [00:49:21] Speaker 02: At JA165 of the notice of inquiry, we said we formally seek the input of all of the expert bodies in this area. [00:49:31] Speaker 02: And we left the docket open for seven years, giving ample opportunity to weigh in, and not one of these bodies said you need to change your standards. [00:49:42] Speaker 02: We're not arguing that silence should be construed as endorsement, but it shouldn't be construed as disapproval of the agency's existing limits. [00:49:50] Speaker 04: I think even if you construe it as neutral, all of the representations that we did receive, and again, the FDA has, it's undisputed that the FDA has- You want us to construe as deliberation that silence should be construed as these relevance committees actually deliberated, actually reviewed, [00:50:13] Speaker 04: the record in studies. [00:50:15] Speaker 04: So you are asking us to infer something that's significant. [00:50:20] Speaker 02: Well, all that we're asking you to infer is what the Second Circuit and Cellular Phone Task Force said was reasonable, which was for us to presume that the agencies and bodies charged with staying on top of this area and regulating in this area and paying attention to the science in this area have done so. [00:50:38] Speaker 02: Yes, we're asking that you presume that the agencies with responsibility in this area. [00:50:43] Speaker 04: Even when the report that they send back doesn't reference, you know, lots of relevant studies and lots of relevant issues, we still presume that they reviewed those studies and those issues. [00:51:00] Speaker 02: Yes, I think it's reasonable for the FTC to presume that they did. [00:51:04] Speaker 02: As I said, the FDA referred to its ongoing monitoring activities. [00:51:08] Speaker 02: and confirmed its responsibility in this area. [00:51:12] Speaker 02: And I don't think that there's any requirement that the FCC wait for this committee to speak as a committee that it can't rely on the FDA's representations about the state of the science. [00:51:27] Speaker 02: Again, this committee is created in the FDA's operating statute and appears in the section right after FDA has been anointed [00:51:38] Speaker 02: the agency with responsibility in this area. [00:51:40] Speaker 04: Um, and, and under the tell me whether that committee even exists or whether the committee reviewed anything having to do with this petition. [00:51:53] Speaker 02: I can't sitting here. [00:51:54] Speaker 02: I don't, I don't have any personal knowledge about that committee. [00:51:57] Speaker 02: I do know. [00:51:58] Speaker 04: Why shouldn't that bother bother the court? [00:52:03] Speaker 02: Well, again, because the FDA weighed in, it's statutorily directed to be the responsible agency in this area. [00:52:11] Speaker 02: And I think the FDA, we know it does have primary jurisdiction over public health. [00:52:17] Speaker 02: I don't know that every other member of that committee [00:52:19] Speaker 02: does, but they are certainly well equipped to evaluate the science and make a representation about the sufficiency of the radio frequency emission limits. [00:52:27] Speaker 02: I mean, one other point, the FDA regulates in this area. [00:52:31] Speaker 02: They are responsible for promulgating the radio frequency emission levels for devices that the FCC doesn't regulate. [00:52:37] Speaker 02: So again, this is an important part of their mandate. [00:52:40] Speaker 02: And just as we relied on expert agencies in adopting the limits, it was reasonable to do so here. [00:52:47] Speaker 02: Just one more point on this. [00:52:48] Speaker 02: As I said at the outset, we weren't riding on a blank slate here. [00:52:51] Speaker 02: In 1996, we adopted these limits and we had the input of the FDA, the EPA, OSHA, and IOSH. [00:52:59] Speaker 02: So these limits don't reflect the views exclusively of the FDA. [00:53:06] Speaker 02: It was a considered and lengthy deliberative rulemaking. [00:53:14] Speaker 02: And none of them weighed in to say that they needed to be changed. [00:53:20] Speaker 02: I'd be happy to answer other questions of the panel. [00:53:24] Speaker 01: I do have one. [00:53:25] Speaker 01: How difficult would it be to determine whether these committees and working groups exist? [00:53:33] Speaker 01: I can easily. [00:53:35] Speaker 01: Well, I mean, are they set up by regulation? [00:53:37] Speaker 01: That's my question. [00:53:40] Speaker 01: Is it a question you can answer with some sort of supplemental submission? [00:53:49] Speaker 02: Yes. [00:53:50] Speaker 02: It is a factual question and it's certainly one that we can answer in a supplement if the panel is interested. [00:53:57] Speaker 01: All right. [00:54:00] Speaker 01: All right, are there any more questions? [00:54:03] Speaker 04: None for me. [00:54:04] Speaker 01: All right, Judge Millett. [00:54:08] Speaker 02: If there are no further questions, we ask that the petitions for review be denied. [00:54:11] Speaker 01: All right. [00:54:13] Speaker 01: Mr. McCulloch, why don't you take a couple of minutes and reply? [00:54:20] Speaker 00: Thank you. [00:54:20] Speaker 00: I'd like to try to make about five or six really quick points. [00:54:23] Speaker 00: First of all, to follow up from the questioning about FOX, if you could take a look at 780F3 at 1024 to 1047, that's where the court discusses the matter that we were addressing. [00:54:36] Speaker 00: You might also take a look at the American horse decision that we cited in our brief. [00:54:41] Speaker 00: It says that even at the high level of deference, the agency has to explain. [00:54:45] Speaker 03: I'm sorry, which page is in FOX specifically are you talking about? [00:54:48] Speaker 00: 1024 to 1047. [00:54:51] Speaker 03: Um, wait, I have, sorry. [00:54:55] Speaker 03: Fox starts on 1027, doesn't it? [00:54:58] Speaker 03: I'm so sorry. [00:55:00] Speaker 00: I may have that wrong. [00:55:02] Speaker 00: I was dealing with a printout, but it is in there and I do apologize. [00:55:07] Speaker 00: Um, I really do have to push back against the finding any order in council's arguments. [00:55:13] Speaker 00: There's no evidence of non-thermal arts. [00:55:15] Speaker 00: We don't have to go through it right now, but I would love to direct your attention to when you get back in chambers, the exhibit that we distributed to the court for purposes of oral argument. [00:55:25] Speaker 00: There are three pictures in there, each of which show non-thermal impacts from radiation, blood brain barrier damage, DNA damage, and then glucose metabolism responses. [00:55:39] Speaker 00: All of these are direct responses to and effects from exposure to non-thermal RF. [00:55:45] Speaker 00: So you just simply cannot say there is no evidence. [00:55:48] Speaker 00: All of this is in the record. [00:55:50] Speaker 00: The commission cannot say that there is no evidence when there are 1,000 peer reviewed studies that show harmful effects from non-thermal. [00:55:59] Speaker 00: With regard to the agencies, the Interior Department, the EPA, the OSHA, a couple of them did respond to the commission in somewhat cursory fashion. [00:56:11] Speaker 00: Granted, you know what they said? [00:56:13] Speaker 00: They said, talk to the NTP. [00:56:15] Speaker 00: They didn't say talk to the FDA. [00:56:17] Speaker 00: They said talk to the NTP. [00:56:19] Speaker 00: They deemed the NTP to be the agency with expertise here. [00:56:24] Speaker 00: And we know what the NTP found. [00:56:27] Speaker 00: With regard to the RFI-AWG, I cannot presently help you with the factual question you asked. [00:56:33] Speaker 00: We too would be happy to supplement. [00:56:36] Speaker 00: But I do know that there is evidence in the record indicating the RFI-WG, after 1996, [00:56:44] Speaker 00: supplied information to the commission expressing significant concerns about the non-thermal only approach. [00:56:51] Speaker 00: They too had concerns with the thermal only regime. [00:56:57] Speaker 00: With regard to Judge Wilkins questioning about remand, we of course, that's precisely what we see. [00:57:06] Speaker 00: We think the commission failed to address the record that was before it [00:57:12] Speaker 00: It did not evaluate that information. [00:57:14] Speaker 00: And we of course would very much appreciate the ability to provide even more information because things happen every day. [00:57:22] Speaker 00: There have been developments since this order was issued a little over a year ago. [00:57:27] Speaker 03: We can't look at developments after the record in this case. [00:57:29] Speaker 00: I understand. [00:57:30] Speaker 00: And that's why we think that it should be considered on remit. [00:57:34] Speaker 00: As Judge Millett pointed out, the situation is far different now than in 2000 and 2004. [00:57:42] Speaker 00: And the science is far more robust. [00:57:46] Speaker 00: I was fascinated by the questions about cumulative impact and counsel's admission that when it comes to non-fixed sources, its rules do not account for cumulative impact, cumulative impact, response to chronic exposures from any of these, much less mobile devices. [00:58:12] Speaker 00: And that is because they persist in this thermal only approach. [00:58:17] Speaker 00: But the evidence is clear that there are biological responses that are in many ways similar to what happens with thermal radiation. [00:58:25] Speaker 00: It is simply that it is an indirect response rather than a direct response. [00:58:32] Speaker 00: The same kind of health consequences occur. [00:58:34] Speaker 00: It just occurs indirectly through mechanisms like oxidative stress. [00:58:39] Speaker 00: Now, with regard to the contention that the consensus is the same, that is simply not true. [00:58:43] Speaker 00: Take a look at the chart on the right-hand side of our exhibit. [00:58:49] Speaker 00: The majority of studies now show that there are harmful thermal effects. [00:58:53] Speaker 03: Are those charts that you submitted to us, are they part of the record? [00:58:58] Speaker 00: It is a compilation of information that is in the record. [00:59:02] Speaker 03: They're not from the record itself. [00:59:03] Speaker 00: This particular exhibit is not in the record, but each of the squares [00:59:09] Speaker 00: is in each of the images are in the record on the left and bottom side. [00:59:15] Speaker 00: And then the majority of studies chart comes from graphs that are also in the record. [00:59:21] Speaker 00: We just compiled. [00:59:22] Speaker 00: The commission insists there's no effect, but that is only because it insists on looking only at non-thermal effects. [00:59:33] Speaker 00: And that's the very problem here. [00:59:35] Speaker 00: When you are looking at the testing regime or anything else, [00:59:39] Speaker 00: Yes, of course, you want to have a safety margin. [00:59:42] Speaker 00: When you're going around in an obstacle, you want to give it a wide berth. [00:59:46] Speaker 00: The problem is the safety margin here, everybody is so focused on the thermal effect that they're not paying attention to the ditch that you're driving into on the non-thermal effect side. [00:59:59] Speaker 01: All right, you need to wrap it up, Mr. McCullough. [01:00:02] Speaker 00: Thank you. [01:00:03] Speaker 00: I'd be very much remiss if I did not make one final plea. [01:00:08] Speaker 00: The commission did not at all consider individual impact for those who demonstrated that they are presently being harmed. [01:00:16] Speaker 00: It made no provision for them. [01:00:17] Speaker 00: It did not recognize them. [01:00:18] Speaker 00: These were individuals who have just had their lives devastated. [01:00:24] Speaker 00: We respectfully request that the court vacate and remain. [01:00:29] Speaker 00: and require the commission to engage in recent decision-making and respond to all the material points and comments raised. [01:00:36] Speaker 01: Thank you. [01:00:37] Speaker 01: All right. [01:00:37] Speaker 01: Thank you. [01:00:39] Speaker 01: Ms. [01:00:39] Speaker 01: Boissel, can you get whatever information there is about the formation of these committees and working groups we've been talking about and submit it? [01:00:53] Speaker 01: Well, let's say that should be fairly easy. [01:00:55] Speaker 01: It's either there or they either exist or they don't. [01:00:59] Speaker 01: Let's say by five o'clock tomorrow and then Mr. McCulloch. [01:01:06] Speaker 01: Let's see. [01:01:07] Speaker 01: I don't know that there'd be anything to respond to because they either exist or they don't. [01:01:13] Speaker 01: But why don't you take another 24 hours if you have anything you want to submit in response that is [01:01:22] Speaker 01: purely factual. [01:01:23] Speaker 01: And do my colleagues have anything they want to add a request? [01:01:31] Speaker 03: Can we find out the timing, if possible, when they were created? [01:01:37] Speaker 03: Not only when they came into existence. [01:01:39] Speaker 01: Sure. [01:01:39] Speaker 01: That's a good point. [01:01:41] Speaker 03: And if you're able to, the membership, who's on these committees? [01:01:47] Speaker 01: And Judge Wilkins, anything from you? [01:01:51] Speaker 01: about submissions. [01:01:52] Speaker 01: Okay. [01:01:53] Speaker 01: All right. [01:01:54] Speaker 01: Then I have one final question for Mr. McCulloch that has nothing to do with this case, but you practice law in one of the most colorful sounding towns I've ever heard. [01:02:04] Speaker 01: Where is Dripping Springs, Texas? [01:02:08] Speaker 00: Dripping Springs, Texas is about 40 miles west of Austin, Texas. [01:02:13] Speaker 00: Okay. [01:02:14] Speaker 00: It is in the hill country and it is a beautiful, beautiful small town. [01:02:18] Speaker 01: All right. [01:02:19] Speaker 01: Well, I'm glad I learned of his existence. [01:02:21] Speaker 01: Thank you. [01:02:22] Speaker 01: All right. [01:02:22] Speaker 01: Your case is submitted.