Opposition Brief — Citizens for the Appropriate Placement of Telecommunications Facilities v. Federal Communications Commission

Pe) (2, \ LW! He

DIO & | DEC R = 2000

Nos. 00-393, 00-407, 00-417 and 00-427

Jn the Supreme Court of the Gnited States

CITIZENS FOR THE APPROPRIATE PLACEMENT OF

TELECOMMUNICATIONS FACILITIES, ET. AL.,

PETITIONERS

Vv. ,

FEDERAL COMMUNICATIONS COMMISSION, ET AL.

DAVID FICHTENBERG, PETITIONER

Vv.

FEDERAL COMMUNICATIONS COMMISSION, ET AL.

MICHAEL WORSHAM, PETITIONER

VU.

FEDERAL COMMUNICATIONS COMMISSION, ET AL.

CELLULAR PHONE TASKFORCE, PETITIONER

Vv.

FEDERAL COMMUNICATIONS COMMISSION, ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

SETH P. WAXMAN

Solicitor General

CHRISTOPHER J. WRIGHT Counsel of Record

General Counsel Department of Justice

DANIEL M. ARMSTRONG Washington, D.C. 20530-0001

Associate General Counsel (202) 514-2217

JOEL MARCUS

Counsel

Federal Communications

Commission

Washington, D.C. 20554

QUESTIONS PRESENTED

1. Whether 47 U.S.C. 332(c)(7)(B)(iv) (Supp. IV

1998), which preempts state and local zoning authorities

from regulating the “environmental effects” of personal

wireless telecommunications facilities, includes pre-

emption of state and local regulation of the human

health effects of such facilities.

2. Whether the preemptive effect of 47 U.S.C.

332(c)(7)(B)(iv) (Supp. IV 1998) violates the Tenth

Amendment.

3. Whether the court of appeals correctly found that

the Federal Communications Commission was not

required to prepare an Environmental Impact State-

ment pursuant to the National Environmental Policy

Act of 1969, 42 U.S.C. 4321 et seqg., when it promulgated

rules implementing the provisions of that Act.

4. Whether Congress’s delegation of authority to the

FCC to promulgate rules governing the environmental

effects of radiofrequency radiation violated the “non-

delegation” doctrine.

5. Whether the court of appeals correctly found that

the FCC was not required to solicit the comments

of other agencies on record material newly submitted

to the FCC during a reconsideration of its initial

order promulgating rules governing the environmental

effects of radiofrequency radiation.

6. Whether the court of appeals correctly held that

the FCC’s rules governing the environmental effects

of radiofrequency radiation did not violate the Rehabili-

tation Act of 1973, 29 U.S.C. 794.

(I)

TABLE OF CONTENTS

dia enchashinseinninieinnesintnnanighsndaneantebn

TEENIE ST EO RT OO

SEE TSS LAE Ae a

IE aisles laadabestdisbidlensabacstaiensnieivevsenmentiniaaniasssesneeteroecemnecteers

ic cannticinlnbctemunasniensadecnianie

TABLE OF AUTHORITIES

Cases:

Aegerter v. City of Delafield, 174 F.3d 886 (7th

ESTEE ELSES a ree ee

Alden v. Maine, 527 U.S. 706 (1999) .......cccccccscssssscsssesseeees

American Truckin Ass’ns, Inc. v. EPA, 175 F.3d

1027 (D.C. Cir. 1999), cert. granted, 120 S. Ct. 2003

Re a rile MEO schatisintcdenencisncsossenetsnasenncesscnunincnowmneascereseesonce

Andrus v. Sierra Club, 442 U.S. 347 (1979) ........ccccccceseeees

AT&T Wireless PCS, Inc. v. City Council of Va.

Beach, 155 F.3d 423 (4th Cir. 1988) ..........scscsccssesececeeserees

AT&T Wireless PCS, Inc. v. Winston-Salem Zoning

Bd. of Adjusiment, 172 F.3d 307 (4th Cir. 1999) .............

Bay Area Addiction Research & Treatment, Inc. v.

City of Antioch, 179 F.3d 725 (9th Cir. 1999) ............00

Bender v. Williamsport Area Sch. Dist., 475 US.

SI TTIE scsshnctnstheseesshdinndinetinvesobeenseniiasttinigemensdncinitiicanonesemactedons

California Ass’n of the Physically Handicapped, Inc.

v. FCC, 840 F.2d 88 (D.C. Cir. 1988) ...........ccscsssscssecesseees

Chevron U.S.A. Inc. v. Natural Resources Defense

Counctl, Iné., 467 US. 887 (1984) ...0ccccccccserecscscescesesscescesere

Community Television of S. Cal. v. Gottfried, 459

EEE LASER eS a a

Environmental Defense Fund v. EPA, 489 F.2d

ST MITE: SPITE: Asdsssatctsseisnchaiienoscuninnsndahssesdsininninensesnente

(IIT)

Page

25

25

IV

Cases-——Continued: Page

FCC v. Pottsville Broad. Co., 309 U.S. 184 (1940) o..... ?0

Freeman v. Burlington Broadcasters, Inc., 204

Fae Ek Ce ey SE ilies cicenebasaccbtaactationahabbbocatisaniah 12

Grillespie vo Coty of Indianapolis, 18d F.8d 693 (7th

fF, FERRER ANE D any Pee ete EEL LENE 13

Heartwood, Ine. v. United States Forest Service,

Be Eve Le | PR ernie ee eee 18

Hodel v. Virginia Surface Mining & Reclamation

Oe 6 SE 43 Ek SD bcietenei weet 15

JW. Hampton, Jr., Co. v. United States, 276

SE dita eee, 19

Lujan v. Defenders of Wildlife, 504 U.S. 555

f: | een eeeeaiagein eniinleaapeeseetsagelanngeniaaaasmainantipnagints 13

Maurer v. Hamilton, 309 U.S. 598 (1940) woo ‘ 11

Mistretta v. United States, 488 U.S. 361 (1989) oo... 19

National Broad. Co. v. United States, 319 U.S. 190

EL RUMUED ‘tcnsevasinutabins fticUnienmectanhaaclabaiil ceandabianaeascmnilislihduadiedeiaiiahisasionioi 20

New York v. United States, 505 U.S. 144 (1992) .......... 14

Petersburg Cellular Partnership v. Board of

Supervisors, 205 F.3d 688 (4th Cir. 2000) oes 15, 16

Primeco Personal Communications v. Village of

Fox Fox, 35 F. Supp.2d 648 (N.D. Tl. 1999) oe 12

Printz v. United States, 521 U.S. 898 (1997) wee 13, 14

Schlesinger v. Reservists Comm. To Stop the War,

OO Tres SI icsettsencdctcictaatetiactnnhbniiienaaine 16

Sprint Spectrum, LP. v. Willoth, 176 F.3d 630

GR Sa. DO e ehiniiensscesscrurscainenicnlnsalierivasiviiciberenerenbscsinaidimnbelin 14

Festa V. Katt, 380 U.S, 386 (19467) ......cccccsccrsrscscsvesesserseasees 15

Warth v. Seldin, 422 U.S. 490 (1975) ........cccccccccccccscsscscscees 13

Wisconsin v. Weinberger, 745 F.2d 412 (7th Cir.

198-4) 23

CERES EEE R NENT E ERE E SEES EES EO EEE DEES EEE SEES EEE ESTEE EE SEEE ESSE ESE ES HESS EE EOES

V

Constitution, statutes, regulations and rule: Page

hs CE, BBE, Ze ssesiciinisserstcsnnnivinraciietanednbeaibionn 9, 12, 15, 16

Americans with Disabilities Act of 1990, 42 U.S.C.

EIS OE DIM... cnsceccesiivaihcmnnisiiensuaiietepeesicaiinaivesitepeinphnahiaashntaniaiiints i)

Communications Act of 1934, 47 U.S.C. 151 et seq.:

47 U.S.C. 151 (1994 & Supp. TV 1998) ...........cecsssseeees 21

GF RR, BI acertndccitodicisstiahcsdinitndieieilnrbiasneaiaaa een 20

GE REGRAA, BOOED cniccsiemnictntinenntiinnlabibdeiaeieals 21

BE Sie: SUD sitininsenncieniciniiinnisiininnnenieigaiealidaiiaaeiinasts 20

GF REA. Spee. sccicsesvsisneninasteaainieneisniniepiiiitsilinsiaidlcedincaaa 20

47 U.S.C. 303(f) (1994 & Supp. [V 1998) oe eseseees 20

SE CITRATE D wesishicesdinceintctiiaciinecintetentijadlliageita naa 20

GE CAE AS. DE csnsciciccctsawcsictnisiiatitsitatainlaepiscnisitapainiieinaeiiaaa 20

47 U.S.C. 309G)(3)(D) (Supp. TV 1998) 0. ecceeeseseee 21

SF TRA, Tae wisecsiniivieteiiesisitellapinnisiantieiuilscehdiehaiitintsadacsiaaads 24

47 U.S.C. 332(c)(7) (Supp. TV 1998) .......csseseceseceeeees 6

47 U.S.C. 332(c)(7)(A) (Supp. TV 1998) 00... eeseseseseeeees 8, 14

47 U.S.C. 332(¢)(7)(B)(ii) (Supp. TV 1998) ......... eee 6

47 U.S.C. 332(c)(7)(B)(iii) (Supp. TV 1998) ........ eee 6, 16

47 U.S.C. 332(c)(7)(B)(iv) (Supp. I'V 1998) ............. 6, 8, 10,

12, 14, 16

National Environmental Policy Act of 1969,

GB ETE LS, GER TE I, inehicenitieieiecciissnabinipnceanitiatininioapimnitianti 2

SD A, Gee Wirhicecshinniinicicteebiibieninneciicnniicissiin 2

Rehabilitation Act of 1973, 29 U.S.C. 701 et seq.:

29 U.S.C. 794 (1994 & Supp. [V 1998) 0... eeeseeeeeees 7, 24

Telecommunications Act of 1996, Pub. L. No.

RG, Fa ea Se ceniiriicisesncceitileiesinesiliheactintaiealianaihiaenicts 6

a ec TU -ileesaiciaticiniceinaitcntaichmnatdieetaobntiiidaide 9

A Tr GIR, TUN catisciscticitsinsstiniieeciettesipaitinnacinabiabaiain 6

BRA, ER a TO eairisssnisesetinstincitactiintvitito 6, 10, 19

40 C.F.R.:

IE: eae sesaianicschienissasaerienncabisiensilitiiiiieantipinapaishtcenlacdaiuih 18

SIND TPIT IIE sntntabirsntinnsinichcltntiiadeperthensintcctaee a ce 5

Dt”, RR ree eee A ne 3

VI

Regulations and rule—Continued: Page

I OI scien dolcincenensesncilacaioniabiaa ial 2

I tle 2

I TIITII hciucssscacalehiaipclisebeleaaciainedbignioesindseeniesiaesiiid 2

47 C.F.R.:

SSE, RN aT ROC SAY BOR eT ET 5

ICE sa incialiacarheeilaniioneeiabaaiailies 7

RN I IEINOUED -snicsccicsinssestnnneniiintoncsinntsinelanbnanicncioeniiin 7, 25

Re ie NG OI. SII ED scctrecassssecnigmasenisececapioaninumesbinneemanninnana 23

Miscellaneous:

Biological Effects of Radiofrequency Radiation, 100

ee ME IEE TIED tnicicscteecousicantioosisicunsshioonibuichieninsslieatsdiielaens 3,4

Guidelines for Evaluating the Environmental

Effects of Radiofrequency Radiation, Notice of

Proposed Rulemaking, 8 F.C.C.R. 2849 (1998) .......s00 4,11

Guidelines for Evaluating the Environmental

Effects of Radiofrequency Radiation, Report and

Cm, BEF ASAT. FETED CIID wceccstrrasscsineianininnseemnsencionte 5, 22

Guidelines for Evaluating the Environmental Effects

of Radiofrequency Radiation, Second Memo-

orandum Opinion and Order, 12 F.C.C.R. 13,494

SU TNT siladiciadasctocceensiniietahiipsdialeseabbiaaiitdalneianumadadiiinels 5, 21,22, 23, 24

H.R. Rep. No. 204, 104th Cong., Ist Sess. (1995) ............00 6, 11

Letter from Richard M. Smith, Chief, OET, to

Arthur Firstenberg, President, Cellular Phone Task- 7

il cata

Letter from Robert Brenner, Acting Deputy

Assistant Administrator for Air and Radiation to

Dale Hatfield, Chief, FCC Office of Engineering

and Technology (Apr. 30, 1999) ..............scsscssscssscssscssseseeeees 23-24

National Council on Radiation Protection and

Measurements, Biological Effects and Exposure

Criteria for Radiofrequency Electromagnetic

Fields, NCRP Report No. 86 (1986) ..........sssssssssesssesenees 3

VII

Miscellaneous—Continued: Page

Office of Engineering and Technology, FCC,

Questions and Answers About Biological Effects

and Potential Hazards of Radiofrequency Electro-

magnetic Fields, OET Bulletin 56 (4th ed. 1999) ...:...0.0.. 3

Jn the Supreme Court of the United States

No. 00-393

CITIZENS FOR THE APPROPRIATE PLACEMENT OF

TELECOMMUNICATIONS FACILITIES, ET AL.,

PETITIONERS

Vv.

FEDERAL COMMUNICATIONS COMMISSION, ET AL.

No. 00-407

DAVID FICHTENBERG, PETITIONER

v.

FEDERAL COMMUNICATIONS COMMISSION, ET AL.

No. 00-417

MICHAEL WORSHAM, PETITIONER

Vv.

FEDERAL COMMUNICATIONS COMMISSION, ET AL.

No. 00-427

CELLULAR PHONE TASKFORCE, PETITIONER

Vv.

FEDERAL COMMUNICATIONS COMMISSION, ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

(1)

OPINION BELOW

The opinion of the court of appeals (Pet. App. Al-

A22') is reported at 205 F.3d 82.

JURISDICTION

The judgment of the court of appeals was entered on

February 18, 2000. Petitions for rehearing were denied

on June 6, 2000 (Pet. App. A23-A25) and June 15, 2000

(Pet. App. A26-A27). The petition for a writ of certio-

rari in No. 00-393 was filed on September 8, 2000. The

petitions in Nos. 00-407, 00-417 and 00-427 were filed on

September 13, 2000. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATEMENT

1. The National Environmental Policy Act of 1969,

42 U.S.C. 4821 et seg. (NEPA), requires that in con-

nection with “major Federal actions significantly affect-

ing the quality of the human environment,” federal

agencies prepare an “environmental impact” statement

(EIS) that assesses the environmenta! effects of a pro-

posed project. 42 U.S.C. 4332(2)(C). Not all activities,

however, are “major” actions requiring such an analy-

sis. Under rules established by the Council on En. ron-

mental Quality (CEQ), the agency that administers

NEPA, some projects require only an “environmental

assessment” (EA), which may be followed by a “finding

of no significant impact” (FONSI). 40 C.F.R. 1508.9,

1508.13. Other actions may be “categorically excluded”

from environmental analysis. 40 C.F.R. 1508.4. Deter-

mining which level of environmental scrutiny to apply

to specific categories of activities is largely left to the

! Citations to “Pet. App.” refer to the appendix to the petition

in No. 00-393.

ne

3

individual agencies. An agency must, however, define

three “classes of action”: those that “normally do re-

quire environmental impact statements,” those that

“normally do not require” any environmental evalua-

tion, and those that “normally require environmental .

assessments but not necessarily environmental impact

statements.” 40 C.F.R. 1507.3(b)(2).

2. a. All types of wireless communications, including

television, radio, cellular telephones, pagers, and similar

devices, work by sending and receiving electromagnetic

signals. The energy fields generated by the trans-

mitters of radio signals, referred to as radiofrequency

or RF radiation, can affect the environment. Speci-

fically, high levels of RF energy can cause the heating

of human tissue, known as a “thermal” effect.? In 1985,

the Federal Communications Commission (FCC) imple-

mented, pursuant to NEPA and directives issued by

the CEQ, rules that specified the emission levels above

which human exposure to RF energy caused by FCC-

licensed transmitters would require environmental

analysis under NEPA. Biological Effects of Radio-

frequency Radiation, 100 F.C.C. 2d 548 (1985).

The exposure limits were based on RF safety stan-

dards that had been adopted in 1982 by the American

2 Microwave ovens work by virtue of the thermal effect of

extremely high levels of RF energy. See Office of Engineering and

Technology, FCC, Questions and Answers About Biological

Effects and Potential Hazards of Radiofrequency Electromagnetic

Fields, OET Bulletin 56, at 6 (4th ed. 1999). The FCC exposure

limit for the general public is one-fiftieth of the point at which RF

energy begins to cause any unhealthful thermal effect. See

National Council on Radiation Protection and Measurements,

Biological Effects and Exposure Criteria for Radiofrequency

Electromagnetic Fields, NCRP Report No. 86, at 279-283 (1986)

(reprinted at C.A. App. 305-307).

4

National Standards Institute (ANSI), a recognized

standard-setting organization. 100 F.C.C. 2d at 551.

ANSI established recommended levels of “maximum

permissible exposure” or “MPE” for various radio fre-

quencies, since various frequencies cause a thermal

effect at different rates. Transmitting facilities that

would not lead to human exposure above the limits

were considered to have no adverse effect and required

no environmental evaluation; preparation of an EA or

an EIS was required for transmitters that could cause

human exposure above the limits. /d. at 561.

In 1992, ANSI issued new RF exposure standards.

At about the same time, other organizations such as

the congressionally chartered National Council on

Radiation Protection and Measurements (NCRP) also

issued RF protection standards. The following year,

the FCC began a rulemaking proceeding to determine

whether it should adopt one of the new standards to

replace the 1982 ANSI standards. Guidelines for

Evaluating the Environmental Effects of Radio-

Frequency Radiation, Notice of Proposed Rule Making,

8 F.C.C.R. 2849 (1993) (RF Notice).

In the course of the rulemaking proceeding, the Com-

mission received more than one hundred comments

representing a broad range of interests. The Com-

mission’s staff also consulted with and/or received

comments from a number of federal agencies that are

responsible for the environment, human health and

worker safety: the Environmental Protection Agency

(EPA), the Occupational Safety and Health Admini-

stration (OSHA), the Food and Drug Administration

(FDA), and the National Institute for Occupational

Safety and Health (NIOSH). Guidelines for

Evaluating the Environmental Effects of Radio-

frequency Radiation, Report and Order, 11 F.C.C.R.

5

15,128, 15,129-15,131 (1996) (RF Order). When it made

its ultimate decision, the FCC gave particular

deference to the views of those agencies, which are

“expert agencies with respect to determining

appropriate levels of safe exposure to RF energy.” Jd.

at 15,135. In accordance with the suggestions of the

federal environmental and health agencies, the

Commission ultimately adopted new guidelines based

primarily on the RF exposure limits suggested by the

NCRP. /bid.

Under the new RF safety rules, as under the old

ones, licensees generally must determine whether their

transmitters will cause human exposure above the

MPE limits. If so, an EA, and possibly an EIS, must be

prepared and the Commission will then determine

whether to allow transmission to occur.*® No further

environmental analysis is required for transmitters that

will not lead to exposures greater than the limits. 47

C.F.R. 1.1807(b). Certain RF transmitters that operate

at low power levels or in inaccessible locations and are

thus extremely unlikely to cause exposure above

the limits are categorically excluded from having to

perform the initial assessment of RF exposure. 47

C.F.R. 1.1807(b); see also 40 C.F.R. 1507.3(b) (allow-

ing agencies to create categorical exclusions). On

petitions for reconsideration, the Commission reaf-

firmed the fundamentals of its initial decision. Guide-

lines for Evaluating the Environmental Effects of

Radiofrequency Radiation, Second Memorandum

Opinion and Order, 12 F.C.C.R. 13,494 (1997) (RF

Reconsideration Order).

3 As a practical matter, the FCC’s experience is that licensees

almost always ensure that their facilities will not cause excess

exposure, and environmental analysis is rarely conducted.

6

b. Shortly before the Commission issued the RF

Order, the Telecommunications Act of 1996, Pub. L. No.

104-104, 110 Stat. 56, became law. Section 704(a) of that

Act, entitled “National Wireless Telecommunications

Siting Policy,” added a new provision to the Communi-

cations Act of 1934, 47 U.S.C. 332(e)(7)(B)(iv),’ which

provides in pertinent part that “[nJo State or local

government * * * may regulate the placement,

construction, and modification of personal wireless

service facilities on the basis of the environmental

effects of radio frequency emissions to the extent that

such facilities comply with the Commission’s regula-

tions concerning such emissions.” Jbid. In Section

704(b) of the Telecommunications Act Congress also

directed that “[w]ithin 180 days * * * the Commission

shall complete action in [the RF radiation rulemaking]

to prescribe and make effective rules regarding the

environmental effects of radio frequency emissions.”

The House Commerce Committee, which drafted the

preemption provision, explained that the reason for the

prohibition was that “siting and zoning decisions by

non-federal units of government, have created an

inconsistent and, at times, conflicting patchwork of

requirements which will inhibit the deployment of”

advanced telecommunications services. H.R. Rep. No.

204, 104th Cong., Ist Sess. 94-95 (1995). The Committee

explained that “local zoning decisions, while responsive

* All citations in this brief to 47 U.S.C. 332(c)(7) refer to Supp.

IV 1998.

® Congress also directed, in a provision not challenged by peti-

tioners in this Court, that state and local zoning authorities act

within a “reasonable period of time” after the filing of a request to

build a communications tower and that denials of such requests “be

in writing and supported by substantial evidence contained in a

written record.” 47 U.S.C. 332(c)(7)(B)(ii) and (iii).

a

7

to local concern about the potential effects of radio

frequency emission levels, are at times not supported

by scientific and medical evidence.” Jbid. In the RF

Order, the Commission implemented the preemption

provisions by adding Section 1.1307(e) to its rules, the

language of which tracks the statute. 47 C.F.R.

1.1307(e).

c. In February 1997, the Cellular Telephone Task-

force submitted to the Commission a “complaint” claim-

ing that the RF rules discriminate against persons who

are hypersensitive to electromagnetic fields and there-

by violate the Rehabilitation Act of 1973, 29 U.S.C. 794

(1994 & Supp. IV 1998). The Chief of the Office of

Engineering and Technology, acting under delegated

authority, ultimately dismissed the complaint because it

addressed the activities of FCC licensees, not those of

the agency itself. Letter from Richard M. Smith, Chief,

OKT, to Arthur Firstenberg, President, Cellular Phone

Taskforce (Feb. 2, 1998) (C.A. App. 6119-6121). The

FCC’s rules implementing the Rehabilitation Act ex-

pressly do not apply to the “programs or activities of

entities that are licensed or certified by the Com-

mission.” 47 C.F.R. 1.1830(b)(6).

3. a. The court of appeals affirmed the the Com-

mission’s orders. Pet. App. Al-A22. The court rejected

the claim that the Commission had failed to take into

account whether RF energy had deleterious non-

thermal effects, finding that there was “room for

disagreement * * * among experts in the field”

regarding whether such effects existed and that “the

FCC was justified in continuing to rely on the ANSI

and NCRP standards.” /d. at Al0. The court held that

the FCC had committed no error by not supplying the

EPA and other agencies with publicly available studies

that had been submitted to the FCC during the recon-

8

sideration proceeding. The FCC “could reasonably

expect those agencies to keep abreast of scientific

developments” and to “monitor all relevant scientific

input” into the FCC’s decision. bid.

The court rejected the claim that the FCC had vio-

lated NEPA because it did not prepare an EIS in con-

nection with the rules. “|WJhere an agency is engaged

primarily in an examination of environmental questions,

where substantive and procedural standards ensure full

and adequate consideration of environmental issues,

then formal compliance with NEPA is not necessary,

but functional compliance is sufficient.” Pet. App. A17

(quoting Environmental Defense Fund v. EPA, 489

F.2d 1247, 1257 (D.C. Cir. 1973)). The court found that

the FCC’s orders “functionally satisflied] the CEQ’s

requirements for an EA anda FONSI.” Pet. App. A17-

Al8.

The Court upheld the Commission’s finding that,

although 47 U.S.C. 332(c)(7)(B)(iv) precluded state and

local governments from regulating the “placement, con-

struction, and modification” of personal wireless service

facilities “on the basis of the environmental effects of

radio frequency emissions,” that provision applied also

to the operation of such facilities. The court noted that

under Chevron U.S.A. Inc. v. Natural Resources De-

fense Council, Inc., 467 U.S. 837 (1984), deference must

be accorded to the FCC’s interpretation of the statute.

Pet. App. A20. The court also noted that the savings

provision of subsection (A) of the same statute provided

only that the FCC may not “limit or affect the authority

of a State or local government” over “the placement,

construction, and modification of personal wireless

service facilities.” 47 U.S.C. 332(c)(7)(A). Since

“{slubsection (A) does not * * * preserve [state and

local governments’ ] authority to regulate such facilities’

a

9

operations * * * the absence of the word ‘operation’

from the subsequent limitation on their authority under

subsection (B)(iv) does not grant such power.” Pet.

App. A20.

The court rejected the claim that the preemption

provision violates the Tenth Amendment. “The statute

does not commandeer local authorities to administer a

federal program,” the court found, because “State and

local governments are not required to approve or

prohibit anything. The only onus placed on state and

local governments * * * is that they may not regulate

personal wireless service facilities that conform to the

FCC Guidelines on the basis of environmental effects of

RF radiation.” Pet. App. A21. Straightforward pre-

emption of that sort, the court found, does not violate

the Tenth Amendment.

b. In its initial opinion, the court dismissed claims

raised under the Rehabilitation Act and the Americans

with Disabilities Act of 1990, 42 U.S.C. 1201 et seq.

(ADA). Similar claims made before the agency had

been resolved by the staff rather than the Commission

itself, the court found, and therefore had not been the

subject of a final, appealable agency order. Pet. App.

A6. Pursuant to a petition for rehearing, the panel

decided to address the merits of the claims notwith-

standing their lack of finality. The ADA claim failed,

the court found, because the relevant part of the ADA

does not apply to the federal government. /d. at A25.

The claim under the Rehabilitation Act lacks merit

because that Act applies only to “the discriminatory

denial of the benefits of a [federal] ‘program or activ-

ity,’” and the construction of RF transmitters is not a

program or activity of the FCC. Ibid.

10

ARGUMENT

Four parties, Citizens for the Appropriate Placement

of Telecommunications Facilities (CAPTF), Cellular

Phone Taskforce (CPT), Michael C. Worsham (Wor-

sham) and David Fichtenberg (Fichtenberg), petition

for a writ of certiorari. None of the petitions raises any

issue that warrants this Court’s review.

1. Petitioners Worsham and Fichtenberg claim that

the Second Circuit has impermissibly interpreted 47

U.S.C, 3382(¢)(7)(B)(iv). That statute preempts state

and local zoning authorities from regulating the “en-

vironmental effects” of personal wireless service facili-

ties as leng as the transmitter complies with the FCC’s

RF exposure standards. Petitioners contend (Worsham

Pet. 10-14; Fichtenberg Pet. 32-35) that the court of

appeals erroneously interpreted the term “environ-

mental effects” to mean “human health effects.” That

claim is incorrect.

At the outset, the court below did not address the

issue. The court stated in passing (Pet. App. A5) in the

background section of its opinion that the preemption

provision included human health considerations, but the

court did not consider the question in its legal dis-

cussion and did not provide any analysis of it. For that

reason alone, this case is unsuited for further review.

Moreover, the court of appeals’ apparent under-

standing of the statute was correct and not in conflict

with any decision of this Court or another court of

appeals. When it enacted Section 332(c)(7)(B)(iv),

Congress was clearly concerned with the biological

effects of RF energy fields. The statute preempts only

“to the extent that such facilities comply with the

Commission’s regulations concerning [RF] emissions.”

A tandem provision, Section 704(b) of the Telecom-

1]

munications Act, gave the FCC 180 days to “complete

action in ET Docket 93-62 to prescribe and make

effective rules regarding the environmental effects of

radio frequency emissions.” Both the rulemaking pro-

ceeding and the FCC regulations to which Congress

| referred concerned almost exclusively the biological

F effects of RF energy. The original 1982 ANSI exposure

standards that the FCC adopted in 1985 were based on

the absorption of RF energy by the human body and

the thermal effects in the human body of various levels

of RF exposure. The 1992 ANSI standard, which the

Commission proposed to adopt in ET Docket 93-62, see

RF Notice, supra, likewise had to do entirely with

human biological effects of RF fields. The statutory

preemption of state and local consideration of environ-

mental effects of RF to the degree that a transmitter

complied with the FCC’s rules thus necessarily was

intended to include state and local consideration of

biological effects.°

Petitioners mistakenly rely on a general presumption

that ambiguous statutes should not be interpreted

to preempt state law concerning health and safety.

Worsham Pet. 9; Fichtenberg Pet. 33-34. That pre-

sumption does not apply where, as here, Congress’s

intent to preempt local consideration of biological

effects is “clearly indicated by those considerations :

which are persuasive of the statutory purpose.”

| Maurer v. Hamilton, 309 U.S. 598, 614 (1940). That

& The House Report discussing Section 704 of the Telecom-

munications Act further confirms that conclusion. The Report

expressed Congress’s concern that state and local authorities had

interfered with the nationwide deployment of wireless communi-

cations systems for reasons that were “at times not supported by

scientific and medical evidence.” H.R. Rep. No. 204, supra, at 95

(emphasis added).

12

standard is amply satisfied by the statutory and admini-

strative context of Section 332(¢c)(7)(B)(iv) as well as its

legislative history. That Congress may have distin-

guished health effects from environmental effects

(Worsham Pet. 13-14) in other statutes addressing

different problems is of no moment in the face of Con-

gress’s evident intent here.

As petitioner Worsham notes, “(t}wo federal courts

have essentially agreed with the Court of Appeals in

the instant case.” Pet. 12 (citing AT&T Wireless PCS,

Inc. v. City Council of Va. Beach, 155 F.3d 428, 431 n.6

(4th Cir. 1988), and Primeco Personal Communications

v. Village of Fox Lake, 35 F. Supp. 2d 6438, 645 (N.D. Il.

1999)). Petitioner Worsham asserts (Pet. 10), however,

that the decision of the court of appeals “is arguably

inconsistent with” the decision of the Second Circuit in

Freeman v. Burlington Broadcasters, Inc., 204 F.3d

311, cert. denied, 121 S. Ct. 276 (2000). The cited

passage from Freeman states that the term “environ-

mental effects” is not defined in the statute and that it

“focus[es] on degradation of the natural environment,

effects on historical landmarks, and the biological

effects of RF radiation.” Id. at 325 (emphasis added).

Accordingly, Freeman is entirely consistent with the

Second Circuit’s holding in this case that the term

“environmental effects” includes human health con-

siderations. In any event, further review would not be

warranted to resolve an intra-circuit discrepancy.

2. Petitioners CAPTF and Fichtenberg contend

(CAPTF Pet. 14-21; Fichtenberg Pet. 35-38) that the

preemptive effect of 47 U.S.C. 332(c)(7)(B)(iv) violates

the Tenth Amendment. They claim that Congress

has impermissibly commandeered the government

apparatus of the states. The court of appeals correctly

13

rejected that claim, and its decision does not conflict

with that of any other court of appeals or of this Court.’

Congress commandeers the legislative process of

States “by directly compelling them to enact and en-

force a federal regulatory program.” New York v.

United States, 505 U.S. 144, 161 (1992). In New York,

the Court struck down Congress’s requirement that the

States either regulate radioactive waste under federal

guidelines or take title to and dispose of the waste

themselves. Jd. at 174-175. Having no choice other

than one of the two courses set forth by Congress, the

States were thus pressed involuntarily into “the service

of federal regulatory purposes.” Jd. at 175. Likewise,

in Printz v. United States, 521 U.S. 898 (1997), the

Court invalidated a federal statute that required local

law enforcement officials to conduct background checks

7 There is a question whether petitioners have standing to pre-

sent their claim. It is our position that individuals not acting in

their official capacity generally lack standing to raise a Tenth

Amendment claim, since they cannot establish that any personal

injury would be redressed by a favorable decision, and the rights

they advance in the litigation are rights of third parties. See

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992); Warth

v. Seldin, 422 U.S. 490 (1975); but ef. Gillespie v. City of

Indianapolis, 185 F.3d 693, 700-703 (7th Cir. 1999) (discussing

authorities and finding standing to raise Tenth Amendment claim),

cert. denied, 120 S. Ct. 934 (2000). In the court of appeals, some

individuals identified as state or local government officials were

petitioners before this Court, although it is not clear whether they

are acting in their official capacities and whether they are

asserting in this litigation rights they hold by virtue of their official

capacities. In addition, individual members of a collective

governmental body ordinarily do not have standing to assert the

rights of the body as a whole. See Bender v. Williamsport Area

Sch. Dist., 475 U.S. 534 (1986).

14

of gun purchasers. That requirement, the Court held,

“compel[led] the States to enact or administer a federal

regulatory program.” /d. at 933 (quoting New York v.

United States, 505 U.S. at 188).

Section 332(c)(7)(B)(iv) does not commandeer the

processes of state and local zoning authorities because

it does not compel those bodies to do anything at all.

Rather, the statute simply limits the factors state and

local zoning authorities may consider in the exercise of

their ordinary zoning functions. Those authorities may

not deny a permit “on the basis of the environmental

effects of radio frequency emissions to the extent that

such facilities comply with the Commission’s regu-

lations concerning such emissions.” 47 U.S.C.

332(c)(7)(B)(iv). They are permitted to grant or deny

permits on any other basis. Indeed, Congress expressly

provided that with the exception of RF and a few other

matters not before the Court, “nothing * * * shall

limit or affect the authority of a State or local govern-

ment or instrumentality thereof over decisions regard-

ing the placement, construction, and modification of

personal wireless service facilities.” 47 U.S.C.

332(¢)(7)(A). That proviso leaves intact all other tradi-

tional bases for land use decisions, such as aesthetics

or neighborhood character, or other local zoning laws.

Local authorities throughout the country have success-

fully rejected tower siting proposals on such grounds.

See, e.g., Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630

(2d Cir. 1999); Aegerter v. City of Delafield, 174 F.3d

886 (7th Cir. 1999); AT&T Wireless PCS, Inc. v.

Winston-Salem Zoning Bd. of Adjustment, 172 F.3d

307 (4th Cir. 1999); AT&T v. City Council of Va. Beach,

supra.

This case thus falls squarely within the principle that

federal law may “displace state regulation” even though

15

this serves to “curtail or prohibit the States’ preroga-

tives to make legislative choices respecting subjects the

States may consider important.” Hodel v. Virginia

Surface Mining & Reclamation Ass’n, 452 U.S. 264, 290

(1981). Indeed, this Court “long ago rejected the

suggestion that Congress invades areas reserved to the

States by the Tenth Amendment simply because it

exercises its authority under the Commerce Clause in a

manner that displaces the States’ exercise of their

police powers.” Jd. at 291; see also Testa v. Katt, 330

U.S. 386 (1947). The court below thus properly held

(Pet. App. A21) that “State and local governments

are not required to approve or prohibit anything”

and correctly rejected petitioners’ Tenth Amendment

claims.

Petitioner CAPTF contends (Pet. 16) that the de-

cision below conflicts with the decision of the Fourth

Circuit in Petersburg Cellular Partnership v. Board of

Supervisors, 205 F.3d 688 (2000) (per curiam). In that

case, the Fourth Circuit upheld a county’s decision to

permit a communications tower to be built, but there

was no agreement on a single rationale. Only a single

judge, Judge Niemeyer, would have upheld the county’s

decision on the ground that certain federal limitations

on the county’s decision violated the Tenth Amend-

ment. See id. at 691; id. at 696-705 (opinion of

Niemeyer, J.).” Accordingly, the Fourth Circuit did not

take a position regarding the Tenth Amendment issue

8 The other judge voting to uphold the county’s decision based

his determination on the ground that the county’s decision did not

violate any provision of the Telecommunications Act. 205 F.3d at

706-710 (opinion of Widener, J.). The third judge dissented from

the court’s disposition, on the ground that the county’s decision did

violate a provision of the Act and that that provision did not violate

the Tenth Amendment. /d. at 710-720 (opinion of King, J.).

16

in that case, and the Fourth Circuit’s decision in that

case therefore does not conflict with the decision of the

Feed Civeait here?

Also without merit is the claim of CAPTF (Pet. 21)

that the decision below conflicts with Alden v. Maine,

527 U.S. 706 (1999), because, in petitioner’s view (Pet.

22), the federal government has allegedly “defaulted on

its obligation to protect public health,” and it therefore

“may not simultaneously prevent the States from taking

action to do so.” The proposition on which petitioner

relies—that federal courts must analyze whether a

federal law adequately protects the public health before

permitting it to preempt state law—has nothing to do

with the Court’s decision in Alden, which addressed

Congress’s power to authorize lawsuits against a State

in its own courts under federal law."® In any event, the

court below correctly found that the FCC’s RF ex-

posure standards, which were formulated by expert

scientific groups that reviewed exhaustive studies and

were supported by every federal health and safety

* In any event, even the position urged by Judge Niemeyer in

his concurring opinion in Petersburg Cellular does not conflict with

the decision of the court below in this case. Judge Niemeyer’s

opinion expressed his belief that 47 U.S.C. 332(¢)(7)(B)(iii), which

requires a state or local decision regarding the placement of cellu-

lar towers to be “in writing and supported by substantial evidence

contained in a written record,” 47 U.S.C. 332(c)(7)(B)(iii), violates

the Tenth Amendment. He appears to have accepted that the pro-

vision at issue here—47 U.S.C. 332(c)(7)(B)(iv)—is constitutional.

205 F.3d at 703-704.

0 Insofar as petitioner's real claim has to do with Congress's

spending priorities, see CAPTF Pet. 24-28, petitioner has no

standing to air generalized grievances about those priorities. See

Schlesinger v. Reservists Comm. To Stop the War, 418 U.S. 208

(1974).

17

agency, provide adequate protection to the public. Pet.

App. AQ.

3. The court of appeals found that the FCC was not

required to prepare an environmental impact statement

because the rulemaking process, which extensively

considered the environmental effects of RF energy,

amounted to “functional compliance” with NEPA; the

rulemaking was, the court held, equivalent to an EA

and a FONSI. Pet. App. Al7-A18. Petitioner Cellular

Phone Taskforce contends (Pet. 9-12) that the decision

conflicts with decisions of other courts holding that the

functional compliance test may lawfully be applied only

to actions of the EPA and not to the actions of other

federal agencies.

Petitioner’s claim is incorrect. No federal regulation,

statute, or other source of law prohibits the application

of the functional compliance test to agencies other than

EPA. The cases cited by petitioner either declined to

apply the test to a particular agency or stated in dictum

that the test applied only to EPA. None of them held

that the test could not be applied in any circumstances

to any other agency. There is thus no conflict.

As a matter of policy, the Executive Branch believes

that the functional compliance test should not be ap-

plied to agencies other than EPA, and the government

therefore does not ordinarily argue that environmental

analyses conducted by agencies other than EPA func-

tionally comply with NEPA. Because that policy has

not been expressed in any formal manner, such as

regulation or other publication, the Second Circuit did

not commit legal error when it found that the FCC had

functionally complied with NEPA. Moreover, in light

of the extensive scientific analysis performed by the

standard-setting organizations that crafted the FCC’s

guidelines (as well as the commentary received by the

18

FCC from pertinent federal agencies, including EPA),

the finding below that the FCC had functionally com-

plied with NEPA was supported by the record.

Further review of the court of appeals’ application in

this case of the “functional compliance” test is accord-

ingly not warranted.

In any event, the Second Circuit’s judgment was

correct for a reason other than the one on which it

relied. The court’s reasoning on this point implicitly

assumes that some kind of environmental analysis was

required. We argued before the court of appeals,

however, that an agency’s promulgation of rules that

themselves implement NEPA and determine when an

EIS is required, is not subject to the preparation of an

EIS. The Seventh Circuit adopted that position in

Heartwood, Inc. v. United States Forest Service, 230

F.3d 947 (2000).

As CEQ has interpreted and implemented NEPA,

each federal agency specifies which of its actions will

be subject to environmental analysis. 40 C.F.R.1507.3.

Under the CEQ’s approach, which is “entitled to sub-

stantial deference,” Andrus v. Sierra Club, 442 U.S.

347, 358 (1979), an agency’s regulations to determine

when to prepare an EJS are not themselves subject to

the EIS requirement. Rather, such rules are “more like

an implementing procedure than a federal action of the

type contemplated in 42 U.S.C. § 4332(2)(C),” and the

categories specified by the rules “are not proposed

actions, [but] categories of actions for which an EA or

EIS has been deemed unnecessary.” Heartwood, 230

F.3d at 953. The rules do not “authoriz[e] any activity

or commi(t] any resources to a project that might im-

pact the environment.” /d. at 954. Accordingly, rules

such as the FCC’s rules in this case implementing

19

NEPA are not subject to the requirement that what

might be termed a “meta-EIS” must be prepared.

4. Petitioners Worsham, Cellular Phone Taskforce

and Fichtenberg contend that Congress impermissibly

delegated to the FCC the authority to promulgate the

RF exposure rules. Worsham Pet. 14-16; CPT Pet. 18-

22; Fichtenberg Pet. 31-32. They claim that Congress

articulated no “intelligible principle” to guide the FCC’s

determination of the issue. The court below did not

address that issue, and on that ground further review is

therefore not warranted.

In any event, the FCC’s authority to promulgate the

RF regulations does not violate the Constitution. Con-

gress may delegate its legislative functions to agencies

“under broad general directives.” Mistretta v. United

States, 488 U.S. 361, 372 (1989). In delegating its

authority, Congress must only “lay down * * * an

intelligible principle to which the [agency] is directed to

conform” in order for the delegation to be consti-

tutional. /bid. (quoting J.W. Hampton, Jr., & Co. v.

United States, 276 U.S. 394, 406 (1928)).

Petitioners claim that the only congressional delega-

tion of authority to the FCC to craft the RF rules is

contained in Section 704(b) of the Telecommunications

Act, which states that “[w]Jithin 180 days after the

enactment of this Act, the Commission shall complete

action in ET Docket 93-62 to prescribe and make

effective rules regarding the environmental effects of

radio frequency emissions.” That delegation, they

assert, provides constitutionally insufficient guidance.

Petitioners’ argument rests on a fundamentally mis-

taken premise. Section 704 was not the source of the

FCC’s authority to act in this case, but is instead simply

a congressional requirement that the FCC timely re-

solve an ongoing rulemaking. Indeed, the FCC first

20

implemented RF rules in 1985, and it began the rule-

making under review three years before the passage of

the Telecommunications Act. The agency thus acted

under its broad authority to regulate communications

conveyed by the Communications Act of 1934.

The FCC issues licenses to use the electromagnetic

spectrum pursuant to 47 U.S.C. 307(a), which accords

the agency authority to grant licenses “if public con-

venience, interest, or necessity will be served thereby.”

Accord 47 U.S.C. 309(a). The public interest standard

continues to be the touchstone of FCC regulation. In

connection with its licensing function, Congress has

granted the FCC the power to “[mJake such rules and

regulations and prescribe such restrictions and condi-

tions, not inconsistent with law, as may be necessary to

carry out the provisions” of the Communications Act.

47 U.S.C. 303(r); accord 47 U.S.C. 154(i); 47 U.S.C.

303(f) (1994 & Supp. IV 1998). The Commission also has

direct authority to “determine the power which each

station shall use,” 47 U.S.C. 303(c) and to “[rJegulate

the kind of apparatus to be used with respect to its

external effects,” 47 U.S.C. 303(e). This Court long ago

held Congress’s expansive delegation of authority to

the agency to be constitutional. National Broad. Co. v.

United States, 319 U.S. 190, 225-226 (1943). The Court

ruled that the “public interest” standard was “as con-

crete as the complicated factors for judgment in such a

field of delegated authority permit.” Jd. at 216 (quoting

FCC vy. Pottsville Broad. Co., 309 U.S. 134, 188 (1940)).

Those cases foreclose petitioners’ delegation argu-

ment.”

1! Petitioners CPT and Worsham appear to claim (CPT Pet. 20-

21; Worsham Pet. 16) that the decision below conflicts with Ameri-

can Trucking Ass’ns, Inc. v. EPA, 175 F.3d 1027 (D.C. Cir. 1999),

21

Petitioner Worsham further asserts (Pet. 14-15) that

it violated the delegation doctrine to give the FCC

authority to establish standards in a health and safety

field in which the agency acknowledged it lacked

expertise. That argument is mistaken.

The RF exposure rules govern the activities of

entities that are licensed and heavily regulated by the

FCC. Congress has charged the FCC with “mak[ing]

available * * * a rapid, efficient, Nation-wide, and

world-wide wire and radio communications service,” 47

U.S.C. 151 (1994 & Supp. IV 1998), has declared it “the

policy of the United States to encourage the provision

of new technologies and services to the public,” 47

U.S.C. 157(a), and has established procedures to ensure

the “efficient and intensive use of the electromagnetic

spectrum,” 47 U.S.C. 309G)(3)(D) (Supp. IV 1998).

There is a trade-off between those goals and public

exposure to RF energy: all risk from RF energy could

be eliminated by prohibiting wireless communications

technologies. Congress has entrusted to the FCC the

process of striking the appropriate balance, a subject

squarely within the agency’s expertise.

To be sure, the Commission stated that it “does not

have the expertise to make independent judgments on

such alleged health effects as ‘electrosensitivity’ or

other reported effects on human health. This is the

responsibility of the federal health and safety agencies.”

cert. granted, 120 S. Ct. 2003 (No. 99-1257) and 120 S. Ct. 2193 (No.

99-1426). Those cases involve a substantially different regulatory

scheme than does this case, and the resolution of those cases is

unlikely to affect the settled analysis of the Communications Act

delegation of authority to the FCC, as directly upheld by this

Court in cases such as Naiional wr Co. and Pottsville

Broadcasting Co.

22

RF Reconsideration Order, 12 F.C.C.R. at 18,588. As

‘ the agency acknowledged when it first implemented

REF exposure rules, it lacks expertise to “develop our

own radiation exposure guidelines,” but “does have the

expertise and authority to recognize technically sound

standards promulgated by reputable and competent

organizations such as ANSI.” 100 F.C.C. 2d at 551.

Moreover, the FCC consulted extensively with EPA,

KDA, OSHA and other federal health and safety

agencies, all of which concurred in the final standard.

RF Order, 11 F.C.C.R. at 15,129-15,131; RF’ Recon-

sideration Order, 12 F.C.C.R. at 13,5388. EPA in

particular had been working on its own set of RF

exposure rules and it had extensive familiarity with the

scientific and medical literature. Pet. App. Al0. In

short, the RF regulations culminated from a multi-dis-

ciplinary, multi-agency effort in which the FCC took

the lead. There was no constitutional infirmity in that

process.

5. Petitioner Cellular Phone Taskforce claims (Pet.

12-15) that the court below erred in finding that the

FCC did not violate the Administrative Procedure Act.

CPT argues that during the reconsideration proceeding

the FCC was required to solicit the comments of the

health and safety agencies on new record material con-

cerning “non-thermal” effects. The court of appeals

properly rejected that claim of error.

By the time of its first order, the FCC had already

consulted extensively with all of the federal health and

safety agencies; the discussions included possible non-

thermal effects of RF energy. See Pet. App. A7-A16.

Moreover, ANSI and NCRP had reviewed extensive

scientific literature on non-thermal effects and found

such phenomena not to be supported by the evidence.

Id. at A9. As the FCC found, no further consultation

23

was needed: “we have considered carefully well over

150 sets of comments filed in this proceeding and have

already consulted extensively with all of the relevant

health and safety agencies.” RF Reconsideration

Order, 12 F.C.C.R. at 13,506. As found in an analogous

context, “[i]t is not enough that the [new] information

may be worthy of further inquiry or may be considered

important research. [The question is] whether or not

the new information presents a seriously different

picture” than that originally envisioned. Wisconsin v.

Weinberger, 745 F.2d 412, 420 (7th Cir. 1984). The court

of appeals correctly concluded that “it was reasonable

for the FCC to continue to rely on the ANSI and NCRP

standards absent new evidence indicating that the

fundamental scientific understanding underlying the

ANSI and NCRP standards was no longer valid.” Pet.

App. A9-A10."

2 Petitioner CPT claims (Pet. 15) that it was arbitrary for the

FCC to have “eschewed serious health-agency evaluation * * *

while simultaneously disclaiming its own expertise.” The court

below found that the FCC “could reasonably expect [the health

and safety] agencies to keep abreast of scientific developments”

and “expect the agency with primacy in evaluating environmental

impacts to monitor all relevant scientific input into the FCC’s

reconsideration.” Pet. App. Al0. Petitioner does not challenge

that finding. Indeed, in a letter which we provided to the court of

appeals pursuant to Federal Rule of Appellate Procedure 28(j),

EPA recently informed the agency that “(t]he information base on

non-thermal effects has not changed significantly since the EPA’s

original comments in 1993 and 1996. * * * The majority of

currently available studies suggests * * * that there are no

significant non-thermal human health hazards. It therefore

continues to be EPA’s view that the FCC exposure guidelines

adequately protect the public from all scientifically established

harms that may result from RF energy fields generated by FCC

licensees.” Letter from Robert Brenner, Acting Deputy Assistant

24

Petitioner Fichtenberg raises the additional admini-

strative law claim that the FCC without explanation

switched from an earlier RF exposure standard that

required exposure to be “as low as reasonably achiev-

able” (ALARA) to the current standards. Fichtenberg

Pet. 28-31. Contrary to petitioner’s assertion (Pet. 28),

ALARA was never the standard; rather petitioner

urged that the agency make it the standard.’ The FCC

explained that a very low standard would not strike a

proper “balance between the need to protect the public

and workers from exposure to potentially harmful RF

electromagnetic fields and the requirement that

industry be allowed to provide telecommunications

services to the public in the most efficient and practical

manner possible.” RF Reconsideration Order, 12

F.C.C.R. at 13,496. The court below affirmed that

finding (Pet. App. All-A12), and there is no cause to

question that conclusion.

6. Finally, petitioner CPT’s claim (Pet. 23-25) that

the court of appeals improperly rejected its claim under

the Rehabilitation Act lacks merit. The argument is

that the decision below conflicts with decisions of other

courts of appeals that local zoning is a “program or

activity” of the relevant governmental unit.

The Rehabilitation Act of 1973, 29 U.S.C. 794 (1994

& Supp. IV 1998), bars discrimination against or denial

of benefits to an “otherwise qualified individual with

a disability” on the basis of the handicap “under any

Administrator for Air and Radiation to Dale Hatfield, Chief, FCC

Office of Engineering and Technology (Apr. 30, 1999).

'S The requirement of 47 U.S.C. 324 that transmitters “use the

minimum amount of power necessary to carry out the com-

munication desired” pertains to interference between stations, not

potential health effects of RF fields, which were unknown in 1934

when Section 324 was enacted.

25

program or activity conducted by any Executive

agency.” Petitioner claizned below that the pro-

liferation of transmitters was causing discrimination

against persons especially sensitive to RF fields. The

court of appeals held that “CPT does not allege that

electrically sensitive people are being denied the

benefit of, or are subject to discrimination under, any

‘program or activity’ of the FCC,” and it dismissed the

charge. Pet. App. A25.

That holding was correct. The FCC’s regulations

implementing the Rehabilitation Act expressly state

that the rules do not apply to the “programs or activi-

ties of entities that are licensed or certified by the

Commission.” 47 C.F.R. 1.1830(b)(6). Both this Court

and the D.C. Circuit have affirmed that approach. Com-

munity Television of S. Cal. v. Gottfried, 459 U.S. 498

(1983); California Ass’n of the Physically Handi-

capped, Inc. v. FCC, 840 F.2d 88 (D.C. Cir. 1988).

That reasoning defeats petitioner’s contention that

the Second Circuit’s judgment conflicts with the de-

cision of the Ninth Circuit in Bay Area Addiction

Research & Treatment, Inc. v. City of Antioch, 179 F.3d

725 (1999). That case applied the Rehabilitation Act to

the zoning activities of a governmental unit. The FCC

does not engage in zoning activities, and Congress’s

preemption of certain aspects of local zoning decisions

does not render the FCC a zoning administrator. There

is no conflict between the decision under review and

that of the Ninth Circuit."

'4 Petitioner CPT also raises (Pet. 24-25) a number of procedural

complaints about the FCC’s alleged failure properly to address

petitioner’s Rehabilitation Act claims. Those complaints are effec-

tively moot in light of the Second Circuit's decision on rehearing to

address petitioner’s arguments on the merits and its ruling on

26

CONCLUSION

The petitions for a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

CHRISTOPHER J. WRIGHT

General Counsel

DANIEL M. ARMSTRONG

Associate General Counsel

JOEL MARCUS

Counsel

Federal Communications

Commission

DECEMBER 2000

the merits that the FCC’s orders in this case did not violate the

Rehabilitation Act. See Pet. App. A25.