On December 20, 2012 FCC, in the above action, dismissed a complaint by Ms. Cynthia Franklin under the obscure provisions of the Data Quality Act (“DQA”) - a 2001 piece of legislation your blogger had never heard of before.

Before getting into the details of Ms. Franklin’s complaint, let me point out that document is a reminder of a more general problem of the FCC website even after there recent improvements: Despite the huge amounts of (poorly organized) data on the FCC website, this complaint and the supporting document are nowhere to be found because it is a “undocketed” proceeding that also lacks any file number. Thus its very existence was unknown to the public until the 12/21 date of the above Order. Indeed even now there is no obvious way to see the whole text of the complaint short of filing a FOIA request and having FCC staff then quibble over whether they should charge you to see this information. Is this really “a government worthy of its people”?

(I also note that as of the drafting of this post, a search of the FCC website on “Cynthia Franklin” yields no results at all!)

OETB65C

Back to the specific issue of Ms. Franklin’s complaint, this deals with an issue that has been discussed here repeatedly since November 2010: OET Bulletin 65, Supplement C (“OETB65C”). This document has as a title, “Evaluating Compliance with FCC Guidelines for Human Exposure to Radiofrequency Electromagnetic Fields Additional Information for Evaluating Compliance of Mobile and Portable Devices with FCC Limits for Human Exposure to Radiofrequency Emissions”. This document describes its function as:

The purpose of this revised supplement is to provide parties filing applications for equipment authorization with guidance on complying with the latest requirements using up-to-date test procedures. This supplement is not intended, however, to establish mandatory procedures, and other methods and procedures may be acceptable if based on sound engineering practice.

Thus it is not a “regulation” because it is not “mandatory”, but it does give a “safe harbor” showing equipment authorization applications what FCC will accept for compliance showing with RF safety issues. As Time Magazine pointed out in 2010,

FCC testing regulations notably chose not to simulate a situation in which the phone was broadcasting at full power while inside a shirt or pants pocket flush against the body, an odd oversight given the known habits of many cellular-phone users.

OETB65C was issued in June 2001 and lists 2 authors and 3 contributors. (Only one of these people still work at FCC and I suspect he had little involvement with the controversy at hand.) Your blogger worked in OET management at the time and had absolutely no involvement. Indeed, OET was under acting leadership in the early Powell chairmanship at that time as Ed Thomas did not arrive as its chief until early 2002. As quoted in the FCC Order (remember, the actual compliant is still not on the public record due to the website problems mentioned above), the Franklin complaint deals “three of the FCC consumer documents” arguing that “the documents should be corrected to state that cell phones are not tested for RF exposure during use in direct contact with the body, and therefore they should not be used in such a manner.”

The December 20 Order reaffirms OET’s October 2011 rejection of the Ms. Franklin’s compliant - a document also not on the public record. The grounds seem to be a narrow interpretation of the Data Quality Act. Perhaps thee grounds are even a correct interpretation of the Data Quality Act.

Here is a sample of the FCC’s logic:

Ms. Franklin’s concerns, however, misconstrue the purpose of the document at issue, which is not to provide advice on how best to hold and use a cell phone, or to allow consumers to critique the sufficiency of testing methods, but rather to explain why a single reported maximum SAR value is an insufficient basis for comparing the likely RF exposure from individual cell phone models. Indeed, the guide emphasizes that SAR testing “does not indicate the amount of RF exposure consumers experience during normal use of the device.” And while Ms. Franklin asserts that the guide will encourage consumers to carry cell phones against their bodies, the only statement in the guide about how to carry a phone is quite to the contrary, noting that “the most effective means to reduce [RF] exposure are to hold the cell phone away from the head or body and to use a speakerphone or hands-free accessory.”

So basically the document at issue is not guidance to consumers, so it doesn’t matter if it is misleading! It is just guidance to cell phone manufacturers on how to avoid the intention of the FCC’s RF safety rules and there is no Data Quality Act issue involved in that under FCC’s logic.

Cell phone industry: If you want to gain the trust of the US public on RF safety issue you should not hide behind such charades. While your blogger believes that cell phones as actually used these days are safe, the sordid history of OETB65C does not reflect well on the cell phone industry and FCC’s objectivity on safety issues. Better transparency is needed in the drafting and implementation of FCC Rules on RF safety to keep the public trust.

Tags: rf safety, FCC website