Part One of this series summarized the FCC’s long-pending proceeding and initial set of decisions on human exposure to radiofrequency (RF) fields. Generally, the more complicated and difficult decisions were deferred. In light of Chairman Ajit Pai’s commitments to Congress, we expect the FCC to resolve at least some of the remaining issues in 2018. Let us now examine areas that are likely up next for decision.
In addition to the decisions in its First Report and Order (R&O), the FCC adopted a Further Notice of Proposed Rulemaking (FNPRM) and Notice of Inquiry (NOI). The FCC summarized the FNPRM as follows:
We are proposing to broadly revise and harmonize the criteria for determining whether single or multiple fixed, mobile, or portable RF sources are subject to routine evaluation for compliance with the RF exposure limits or are exempted from such evaluations. Additionally, we propose clarifications of evaluation requirements for portable and medical implant devices. We also propose to adopt specific new requirements for signs and barriers at fixed transmitter sites to ensure compliance with public and occupational exposure limits. Further, we propose a clarification of the definition of transient exposure for non-workers exposed at levels up to occupational limits.
[We] propose establishing general exemptions from evaluation to determine compliance in place of existing service-specific “categorical exclusions.” These proposed exemptions involve simple calculations to establish whether any further determination of compliance is necessary. . . . The new, general exemptions would instead apply to all subparts authorizing RF sources. . . . Given the trend toward opportunistic spectrum access to allow services to utilize multiple bands of frequencies with various power limits, inclusion of all services is necessary to better ensure compliance with our exposure limits.
Important proposed changes in the FNPRM include:
The FNPRM also proposes changes regarding mitigation of exposure to RF, stating that “. . . mitigation matters involve post-evaluation procedures to ensure that our exposure limits are not exceeded. Such measures include labels, signs, barriers, occupational training, and enforcement.” Specifically, these proposals include:
There are four-categories of proposed signage requirements. Signage would be required for Categories 2-4 but optional for Category 1.
Category 1 is exposure up to the General Population (GP) limit. No signage would be required. Green “INFORMATION” signs stating that a transmitting source of RF energy is nearby but compliant with FCC exposure limits would be optional.
Category 2 is exposure above the GP limit and up to the Occupational (O) limit. Signs and access control would be required surrounding the area in which the GP limit is exceeded. Blue “NOTICE” signs would have to be large enough to be visible at the separation distance required to comply with the GP limit. Training would be required for occupational personnel with access to the area. Use of personal RF monitors would be recommended but not required.
Category 3 is exposure above the O limit and up to 10 times the O limit. In addition to the Category 2 mitigation requirements, yellow “CAUTION” signs would be required surrounding the area in which the O limit is exceeded. Transient individuals would not be permitted in the Category 3 area. Use of personal protective gear would be recommended but not required.
Category 4 is exposure to more than 10 times the O limit. In addition to the Category 3 mitigation requirements, orange “WARNING” signs would be required where the O limit could be exceeded by a factor of 10 and red “DANGER” signs would be required wherever immediate and serious injury would occur. If power reduction would not sufficiently protect in the event of human presence considering additional use of optional personal protective equipment, lockout/tagout procedures would have to be followed.
The signage for Categories 2, 3, and 4 would require inclusion of the “radiating antenna” RF energy advisory symbol, an explanation of the RF source, behavior necessary to comply with exposure limits, and contact information for a timely response in addition to the color and key words listed for each category.
The FNPRM states that barriers may not be appropriate for all Category 2 environments and that the FCC continues to support suggested Engineering and Technology (OET) exceptions not to require barriers in remote areas with unlikely public access. The FNPRM also reiterates the principle that licensees cannot exclusively on natural barriers for protection unless specifically approved by the FCC on a case-by-case basis. The FCC Enforcement Bureau can require corrective action and impose fines or other sanctions for non-compliance. Copyright 2018 Keller & Heckman
Radiofrequency exposure limits and mitigation requirements are an area of special expertise at Keller and Heckman LLP. With our wide-ranging and deep experience in the areas of telecommunications and health and safety, we stand ready to assist you with any questions or concerns about these regulatory requirements. Please feel free to contact the author at Fitch@khlaw.com.