United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 25, 2021 Decided August 13, 2021

No. 20-1025

ENVIRONMENTAL HEALTH TRUST, ET AL.,

PETITIONERS

v.

FEDERAL COMMUNICATIONS COMMISSION AND UNITED 

STATES OF AMERICA,

RESPONDENTS

Consolidated with 20-1138

On Petitions for Review of an Order

of the Federal Communications Commission

W. Scott McCollough argued the cause for petitioners. 

With him on the joint briefs were Edward B. Myers and Robert 

F. Kennedy, Jr.

Sharon Buccino was on the brief for amici curiae Natural 

Resources Defense Council and Local Elected Officials in 

support of petitioners.
2

Dan Kleiber and Catherine Kleiber, pro se, were on the 

brief for amici curiae Dan and Catherine Kleiber in support of 

peititioners.

James S. Turner was on the brief for amicus curiae 

Building Biology Institute in support of petitioners.

Stephen L. Goodman was on the brief for amicus curiae

Joseph Sandri in support of petitioners.

Ashley S. Boizelle, Deputy General Counsel, Federal 

Communications Commission, argued the cause for 

respondents. With her on the brief were Jonathan D. 

Brightbill, Principal Deputy Assistant Attorney General at the 

time the brief was filed, U.S. Department of Justice, Eric 

Grant, Deputy Assistant Attorney General at the time the brief 

was filed, Jeffrey Beelaert and Justin Heminger, Attorneys, 

Thomas M. Johnson, Jr., General Counsel at the time the brief 

was filed, Federal Communications Commission, Jacob M. 

Lewis, Associate General Counsel, and William J. Scher and 

Rachel Proctor May, Counsel. Richard K. Welch, Deputy 

Associate General Counsel, entered an appearance.

Before: HENDERSON, MILLETT and WILKINS, Circuit 

Judges.

Opinion for the Court filed by Circuit Judge WILKINS.

Opinion dissenting in part filed by Circuit Judge 

HENDERSON.

WILKINS, Circuit Judge: Environmental Health Trust and 

several other groups and individuals petition for review of an 

order of the Federal Communications Commission (“the 

Commission”) terminating a notice of inquiry regarding the 
3

adequacy of the Commission’s guidelines for exposure to 

radiofrequency radiation. The notice of inquiry requested 

comment on whether the Commission should initiate a 

rulemaking to modify its guidelines. The Commission 

concluded that no rulemaking was necessary. Petitioners argue 

that the Commission violated the requirements of the 

Administrative Procedure Act by failing to respond to 

significant comments. Petitioners also argue that the National 

Environmental Policy Act required the Commission to issue an 

environmental assessment or environmental impact statement 

regarding its decision to terminate its notice of inquiry. 

We grant the petitions in part and remand to the 

Commission. The Commission failed to provide a reasoned 

explanation for its determination that its guidelines adequately 

protect against the harmful effects of exposure to 

radiofrequency radiation unrelated to cancer. 

I.

The Federal Communications Commission regulates 

various facilities and devices that transmit radio waves and 

microwaves, including cell phones and facilities for radio, TV, 

and cell phone communications. 47 U.S.C. §§ 301, 302a(a); 

see EMR Network v. FCC, 391 F.3d 269, 271 (D.C. Cir. 2004). 

Radio waves and microwaves are forms of electromagnetic 

energy that are collectively described by the term 

“radiofrequency” (“RF”). Office of Eng’g & Tech., Fed. 

Commc’ns Comm’n, OET Bulletin No. 56, Questions and 

Answers about Biological Effects and Potential Hazards of 

Radiofrequency Electromagnetic Fields 1 (4th ed. Aug. 1999). 

The phenomenon of radio waves and microwaves moving 

through space is described as “RF radiation.” Id. 

We often associate the term “radiation” with the term 

“radioactivity.” “Radioactivity,” however, refers only to the 
4

emission of radiation with enough energy to strip electrons 

from atoms. Id. at 5. That kind of radiation is called “ionizing 

radiation.” Id. It can produce molecular changes and damage 

biological tissue and DNA. Id. Fortunately, RF radiation is 

“non-ionizing,” meaning that it is not sufficiently energetic to 

strip electrons from atoms. Id. It can, however, heat certain 

kinds of materials, like food in your microwave oven or, at 

sufficiently high levels, human body tissue. Id. at 6–7. 

Biological effects that result from the heating of body tissue by 

RF energy are referred to as “thermal” effects, and are known 

to be harmful. Id. Exposure to lower levels of RF radiation 

might also cause other, “non-thermal” biological effects. Id. at 

8. Whether it does, and whether such effects are harmful, are 

subjects of debate. Id.

The National Environmental Policy Act (“NEPA”) and its 

implementing regulations require federal agencies to “establish 

procedures to account for the environmental effects of [their] 

proposed actions.” Am. Bird Conservancy, Inc. v. FCC, 516 

F.3d 1027, 1032 (D.C. Cir. 2008) (per curiam). If an agency 

proposes a “major Federal action[]” that stands to 

“significantly affect[] the quality of the human environment,” 

the agency must prepare an environmental impact statement 

(“EIS”) that examines the adverse environmental effects of the 

proposed action and potential alternatives. 42 U.S.C. § 

4332(C). Not every agency action, however, requires the 

preparation of a full EIS. Theodore Roosevelt Conservation 

P’ship v. Salazar, 616 F.3d 497, 503 (D.C. Cir. 2010). If it is 

unclear whether a proposed action will “significantly affect[] 

the quality of the human environment,” 42 U.S.C. § 4332(C), 

the responsible agency may prepare a more limited 

environmental assessment (“EA”). See 40 C.F.R. § 1501.5(a). 

An EA serves to “[b]riefly provide sufficient evidence and 

analysis for determining whether to prepare an [EIS] or a 

finding of no significant impact.” 40 C.F.R. § 1501.5(c)(1). 
5

Additionally, an agency may use “categorical exclusions” to 

“define categories of actions that normally do not have a 

significant effect on the human environment and therefore do 

not require preparation of an environmental impact statement.” 

40 C.F.R. § 1500.4(a); see also 40 C.F.R. § 1501.4(a). 

To fulfill its obligations under NEPA, the Commission has 

promulgated guidelines for human exposure to RF radiation. 

Cellular Phone Taskforce v. FCC, 205 F.3d 82, 87 (2d Cir. 

2000). The guidelines set limits for RF exposure. Before the 

Commission authorizes the construction or use of any wireless 

facility or device, the applicant for authorization must 

determine whether the facility or device is likely to expose 

people to RF radiation in excess of the limits set by the 

guidelines. 47 C.F.R. § 1.1307(b). If the answer is yes, the 

applicant must prepare an EA regarding the likely effects of the 

Commission’s authorization of the facility or device. Id. 

Depending on the contents of the EA, the Commission may 

require the preparation of an EIS, and may subject approval of 

the application to a full vote by the Commission. Office of 

Eng’g & Tech., Fed. Commc’ns Comm’n, OET Bulletin No. 

65, Evaluating Compliance with FCC Guidelines for Human 

Exposure to Radiofrequency Electromagnetic Fields 6 (ed. 97-

01, Aug. 1997). If the answer is no, the applicant is generally 

not required to prepare an EA. 47 C.F.R. § 1.1306(a). 

The Commission last updated its limits for RF exposure in 

1996. Resolution of Notice of Inquiry, Second Report and 

Order, Notice of Proposed Rulemaking, and Memorandum 

Opinion and Order, 34 FCC Rcd. 11,687, 11,689–90 (2019) 

(“2019 Order”); see also Telecommunications Act of 1996, 

Pub. L. No. 104-104, § 704(b), 110 Stat. 56, 152 (directing the 

Commission to “prescribe and make effective rules regarding 

the environmental effects of radio frequency emissions” within 

180 days). The limits are based on standards for RF exposure 
6

issued by the American National Standards Institute 

Committee (“ANSI”), the Institute of Electrical and Electronic 

Engineers, Inc. (“IEEE”), and the National Council on 

Radiation Protection and Measurements (“NCRP”). In re 

Guidelines for Evaluating the Environmental Effects of 

Radiofrequency Radiation, 11 FCC Rcd. 15,123, 15,134–35, 

15,146–47 (1996). The limits are designed to protect against 

“thermal effects” of exposure to RF radiation, but not “nonthermal” effects. EMR Network, 391 F.3d at 271. 

In March 2013, the Commission issued a notice of inquiry 

regarding the adequacy of its 1996 guidelines. See 

Reassessment of Radiofrequency Exposure Limits & Policies, 

Notice of Inquiry, 28 FCC Rcd. 3,498 (2013) (“2013 Notice of 

Inquiry”). The Commission divided its notice of inquiry into 

five sections. In the first section, it sought comment on the 

propriety of its exposure limits for RF radiation, particularly as 

they relate to device use by children. Id. at 3,575–80. In the 

second section, the Commission sought comment on how to 

better provide information to consumers and the public about 

exposure to RF radiation and methods for reducing exposure. 

Id. at 3,580–82. In the third section, the Commission sought 

comment on whether it should impose additional precautionary 

restrictions on devices and facilities that are unlikely to expose 

people to RF radiation in excess of the limits set by the 

Commission’s guidelines. Id. at 3,582–85. In the fourth and 

fifth sections, the Commission sought comment on whether it 

should change its methods for determining whether devices and 

facilities comply with the Commission’s guidelines. Id. at 

3,585–89.

The Commission explained that it was issuing the notice 

of inquiry in response to changes in the ubiquity of wireless 

devices and in scientific standards and research since 1996. Id. 

at 3,570. Specifically, the Commission noted that the IEEE had 
7

“published a major revision to its RF exposure standard in 

2006.” Id. at 3,572. The Commission also noted that the 

International Commission on Non-Ionizing Radiation 

Protection had published RF exposure guidelines in 1998 that 

differed somewhat from the Commission’s 1996 guidelines, 

and was likely to release a revision of those guidelines “in the 

near future.” Id. at 3,573. And the Commission noted that the 

International Agency for Research on Cancer (“IARC”) had 

classified RF radiation as possibly carcinogenic to humans, and 

was likely to release a detailed monograph regarding that 

classification prior to the resolution of the notice of inquiry. Id. 

at 3,575 & n.385. The Commission invited public comment on 

all of these developments, but underscored that it would “work 

closely with and rely heavily—but not exclusively—on the 

guidance of other federal agencies with expertise in the health 

field.” Id. at 3,571. 

In December 2019, the Commission issued a final order 

resolving its 2013 notice of inquiry by declining to undertake 

any of the changes contemplated in the notice of inquiry. See 

2019 Order, 34 FCC Rcd. at 11,692–97.

In January 2020, Petitioners Environmental Health Trust, 

Consumers for Safe Cell Phones, Elizabeth Barris, and 

Theodora Scarato timely petitioned this Court for review of the 

Commission’s 2019 final order. In February 2020, Petitioners 

Children’s Health Defense, Michele Hertz, Petra Brokken, Dr. 

David O. Carpenter, Dr. Paul Dart, Dr. Toril H. Jelter, Dr. Ann 

Lee, Virginia Farver, Jennifer Baran, and Paul Stanley, M.Ed.,

timely petitioned the Ninth Circuit for review of the same 

order, and the Ninth Circuit transferred their petition to this 

Court pursuant to 28 U.S.C. § 2112. This Court consolidated 

the petitions. We have jurisdiction under 47 U.S.C. § 402(a) 

and 28 U.S.C. § 2342(1).
8

II.

Petitioners challenge the 2019 final order under NEPA and

the Administrative Procedure Act (“APA”). We begin with the 

APA. 

A.

Petitioners argue that the order is arbitrary and capricious 

and therefore must be set aside under 5 U.S.C. § 706(2)(A) for 

the following reasons: (1) the order fails to acknowledge 

evidence of negative health effects caused by exposure to RF 

radiation at levels below the limits set by the Commission’s 

1996 guidelines, including evidence of cancer, radiation 

sickness, and adverse effects on sleep, memory, learning, 

perception, motor abilities, prenatal and reproductive health, 

and children’s health; (2) the order fails to respond to 

comments concerning environmental harm caused by RF 

radiation; (3) the order fails to discuss the implications of longterm exposure to RF radiation, exposure to RF pulsation or 

modulation (two methods of imbuing radio waves with 

information), and the implications of technological 

developments that have occurred since 1996, including the 

ubiquity of wireless devices and Wi-Fi, and the emergence of 

“5G” technology; (4) the order fails to adequately explain the 

Commission’s refusal to modify its procedures for determining 

whether cell phones comply with its RF limits; and (5) the 

order fails to respond to various “additional legal 

considerations,” Pet’rs’ Br. at 84. 

Before discussing these arguments, and the Commission’s 

responses to them, we clarify our standard of review. The 

arbitrary and capricious standard of the Administrative 

Procedure Act “encompasses a range of levels of deference to 

the agency.” Am. Horse Prot. Ass’n v. Lyng, 812 F.2d 1, 4 

(D.C. Cir. 1987). We completely agree with the dissenting 
9

opinion that the Commission’s order is entitled to a high degree 

of deference, both because it is akin to a refusal to initiate a 

rulemaking, see id. at 4–5, and because it concerns highly 

technical determinations of the kind courts are ill-equipped to 

second-guess, see Am. Radio Relay League, Inc., v. FCC, 524 

F.3d 227, 233 (D.C. Cir. 2008). So as to the governing law, the 

dissenting opinion and we are on the same page. Nevertheless, 

the Commission’s decision to terminate its notice of inquiry 

must be “reasoned” if it is to survive arbitrary and capricious 

review. See Am. Horse, 812 F.2d at 5; Am. Radio, 524 F.3d at 

241. As with other agency decisions not to engage in 

rulemaking, we will overturn the Commission’s decision if 

there is “compelling cause, such as plain error of law or a 

fundamental change in the factual premises previously 

considered by the agency[.]” Flyers Rights Educ. Fund, Inc. v. 

Fed. Aviation Admin., 864 F.3d 738, 743 (D.C. Cir. 2017) 

(quoting WildEarth Guardians v. EPA, 751 F.3d 649, 653 

(D.C. Cir. 2014)). When an agency in the Commission’s 

position is confronted with evidence that its current regulations 

are inadequate or the factual premises underlying its prior 

judgment have eroded, it must offer more to justify its decision 

to retain its regulations than mere conclusory statements. See 

Am. Horse, 812 F.2d at 6; Am. Radio, 524 F.3d at 241. Rather, 

the agency must provide “assurance that [it] considered the 

relevant factors,” and it must provide analysis that follows “a 

discernable path to which the court may defer.” Am. Radio,

524 F.3d at 241. 

i.

Under this highly deferential standard of review, we find 

the Commission’s order arbitrary and capricious in its failure 

to respond to record evidence that exposure to RF radiation at 

levels below the Commission’s current limits may cause 

negative health effects unrelated to cancer. (As we explain 
10

below, we find that the Commission offered an adequate 

explanation for its determination that exposure to RF radiation 

at levels below the Commission’s current limits does not cause 

cancer.) That failure undermines the Commission’s 

conclusions regarding the adequacy of its testing procedures, 

particularly as they relate to children, and its conclusions 

regarding the implications of long-term exposure to RF 

radiation, exposure to RF pulsation or modulation, and the 

implications of technological developments that have occurred 

since 1996, all of which depend on the premise that exposure 

to RF radiation at levels below its current limits causes no 

negative health effects. Accordingly, we find those 

conclusions arbitrary and capricious as well. Finally, we find 

the Commission’s order arbitrary and capriciousin its complete 

failure to respond to comments concerning environmental 

harm caused by RF radiation.

Petitioners point to multiple studies and reports, which 

were published after 1996 and are in the administrative record,

purporting to show that RF radiation at levels below the 

Commission’s current limits causes negative health effects 

unrelated to cancer, such as reproductive problems and 

neurological problems that span from effects on memory to 

motor abilities. See, e.g., J.A. 3,068 (BIOINITIATIVE WORKING 

GROUP, BIOINITIATIVE REPORT (Cindy Sage & David O. 

Carpenter eds., 2012) (describing evidence that human sperm 

and their DNA are damaged by low levels of RF radiation));

J.A. 5,243 (Igor Yakymenko et al., Oxidative Mechanisms of 

Biological Activity of Low-Intensity Radiofrequency Radiation, 

ELECTROMAGNETIC BIOLOGY & MED., EARLY ONLINE, 1–16 

(2015)); J.A. 5,259–69 (Henrietta Nittby et al., Increased 

Blood-Brain Barrier Permeability in Mammalian Brian 7 Days 

After Exposure to the Radiation from a GSM-900 Mobile 

Phone, 16 PATHOPHYSIOLOGY 103 (2009)); J.A. 5,320–68 

(Henry Lai, A Summary of Recent Literature on 
11

Neurobiological Effects of Radiofrequency Radiation, in

MOBILE COMMUNICATIONS AND PUBLIC HEALTH 187–222 (M. 

Markov ed., 2018)); J.A. 5,994–6,007 (Milena Foerster et al., 

A Prospective Cohort Study of Adolescents’ Memory 

Performance and Individual Brain Dose of Microwave 

Radiation from Wireless Communication, 126 ENV’T HEALTH 

PERSPS. 077007 (July 2018)). Petitioners also point to 

approximately 200 comments submitted by individuals who 

advised the Commission that either they or their family 

members suffer from radiation sickness, “a constellation of 

mainly neurological symptoms that manifest as a result of RF[] 

exposure.” Pet’rs’ Br. at 30–31, 30 n.99. 

The Commission argues that its order adequately 

responded to this evidence by citing the Food and Drug 

Administration (“FDA”)’s determination that exposure to RF 

radiation at levels below the Commission’s current limits does 

not cause negative health effects. The order cites three 

statements from the FDA. First, the order cites an FDA 

webpage titled “Do cell phones pose a health hazard?” that, as 

of December 4, 2017, stated that “[t]he weight of scientific 

evidence has not linked cell phones with any health problems.” 

2019 Order, 34 FCC Rcd. at 11,692–93, 11,693 n.31. Second, 

the order cites a February 2018 statement from the Director of 

the FDA’s Center for Devices and Radiological Health 

advising the public that 

As part of our commitment to protecting the 

public health, the FDA has reviewed, and will 

continue to review, many sources of scientific 

and medical evidence related to the possibility 

of adverse health effects from radiofrequency 

energy exposure in both humans and animals 

and will continue to do so as new scientific data 

are published. Based on our ongoing evaluation 
12

of the issue, the totality of the available 

scientific evidence continues to not support 

adverse health effects in humans caused by 

exposures at or under the current 

radiofrequency energy exposure limits.

Id. at 11,695 n.42. Third, the order cites an April 2019 letter 

from the Director of the FDA’s Center for Devices and 

Radiological Health that does not discuss non-cancer-related 

health effects but instead addresses a 2018 study by the 

National Toxicology Program that found that exposure to RF 

radiation emitted by cell phones may cause cancer in rodents. 

2019 Order, 34 FCC Rcd. at 11,692 & n.28. The letter explains 

that “[a]s a part of our ongoing monitoring activities, we have 

reviewed the results and conclusions of the recently published 

rodent study from the National Toxicology Program in the 

context of all available scientific information, including 

epidemiological studies, and concluded that no changes to the 

current standards are warranted at this time.” Letter from 

Jeffrey Shuren, M.D., J.D., Dir., Ctr. for Devices &

Radiological Health, Food & Drug Admin., Dep’t of Health &

Hum. Servs., to Julius Knapp, Chief, Off. Of Eng’g & Tech.,

FCC (April 24, 2019).

We do not agree that these statements provide a reasoned 

explanation for the Commission’s decision to terminate its 

notice of inquiry. Rather, we find them to be of the conclusory 

variety that we have previously rejected as insufficient to 

sustain an agency’s refusal to initiate a rulemaking. In 

American Horse, this Court considered whether the Secretary 

of Agriculture had offered a satisfactory explanation under the 

APA of his refusal to institute rulemaking proceedings 

regarding the practice of deliberately injuring show horses by 

fastening heavy chains or similar equipment—referred to as 

“action devices”—to the horses’ front limbs. 812 F.2d at 2. In 
13

response to the argument that a certain study presented facts 

that merited a new rulemaking, the Secretary offered the 

following two-sentence explanation:

6. I have reviewed studies and other materials, 

relating to action devices, presented by humane

groups, Walking Horse industry groups, and 

independent institutions, including the study 

referred to in the Complaint. 

7. On the basis of this information, I believe that 

the most effective method of enforcing the Act 

is to continue the current regulations.

Id. at 5. This Court found these “two conclusory sentences . . . 

insufficient to assure a reviewing court that the agency’s 

refusal to act was the product of reasoned decisionmaking.” Id.

at 6. American Horse explained that the study at issue “may or 

may not remove a ‘significant factual predicate’ of the original 

rules’ gaps[,]” and remanded to the Secretary to make that 

determination. Id. at 7.

Similarly, in American Radio, this Court considered 

whether the Commission had offered a satisfactory explanation 

for its decision to retain in its regulations a particular 

“extrapolation factor”—an estimate of the projected rate at 

which radio frequency strength decreases from a radiationemitting source—despite studies submitted in a petition for 

reconsideration indicating that a different extrapolation factor 

would be more appropriate. 524 F.3d at 240–41. The 

Commission explained its decision by asserting that “[n]o new 

information has been submitted that would provide a 

convincing argument for modifying the extrapolation factor . . 

. at this time.” Id. (internal alterations omitted). We rejected 

that explanation as conclusory and unreasoned. Id.
14

The statements from the FDA on which the Commission’s 

order relies are practically identical to the Secretary’s statement 

in American Horse and the Commission’s statement in 

American Radio. They explain that the FDA has reviewed 

certain information—here, “all,” “the weight,” or “the totality” 

of “scientific evidence.” And they state the FDA’s conclusion 

that, in light of that information, exposure to RF radiation at 

levels below the Commission’s current limits does not cause 

harmful health effects. But they offer “no articulation of the 

factual . . . bases” for the FDA’s conclusion. Am. Horse, 812 

F.2d at 6 (internal quotation marks omitted). In other words, 

they do not explain why the FDA determined, despite the 

studies and comments that Petitioners cite, that exposure to RF 

radiation at levels below the Commission’s current limits does 

not cause harmful health effects. Such conclusory statements 

“cannot substitute for a reasoned explanation,” for they provide 

“neither assurance that the [FDA] considered the relevant 

factors nor [do they reveal] a discernable path to which the 

court may defer.” Am. Radio, 524 F.3d at 241. They instead 

represent a failure by the FDA to address the implication of 

Petitioners’ studies: The factual premise—the non-existence 

of non-thermal biological effects—underlying the current RF 

guidelines may no longer be accurate. 

When repeated by the Commission, the FDA’s 

conclusory statements still do not substitute for the reasoned 

explanation that the APA requires. It is the Commission’s 

responsibility to regulate radio communications, 47 U.S.C. § 

301, and devices that emit RF radiation and interfere with radio 

communications, id. § 302a(a), and to do so in the public 

interest, including in regard to public health, Banzhaf v. FCC, 

405 F.2d 1082, 1096 (D.C. Cir. 1968). Even the Commission 

itself recognizes this. See 2019 Order, 34 FCC Rcd. at 11,689 

(“The Commission has the responsibility to set standards for 

RF emissions”); 2013 Notice of Inquiry, 28 FCC Rcd. at 3,571 
15

(explaining that the Commission opened the notice of inquiry 

“to ensure [it] [was] meeting [its] regulatory responsibilities” 

and that it would “work closely with and rely heavily—but not 

exclusively—on the guidance of other federal agencies with 

expertise in the health field” in order to “fully discharge[] [its] 

regulatory responsibility”) (emphasis added). And the APA 

requires that Commission’s decisions concerning the 

regulation of radio communications and devices be reasoned. 

The Commission’s purported reasoning in this case is that it 

chose to rely on the FDA’s evaluation of the studies in the 

record. Absent explanation from the FDA as to how and why 

it reached its conclusions regarding those studies, however, we 

have no basis on which to review the reasonableness of the 

Commission’s decision to adopt the FDA’s conclusions. 

Ultimately, the Commission’s order remains bereft of any 

explanation as to why, in light of the studies in the record, its 

guidelines remain adequate. The Commission may turn to the 

FDA to provide such an explanation, but if the FDA fails to do 

so, as it did in this case, the Commission must turn elsewhere 

or provide its own explanation. Were the APA to require less, 

our very deferential review would become nothing more than a 

rubber stamp. 

The Commission also argues that its order provided a 

reasoned explanation for its decision to terminate the notice of 

inquiry, despite Petitioners’ evidence, by observing that “no 

expert health agency expressed concern about the 

Commission’s RF exposure limits,” and that “no evidence has 

moved our sister health and safety agencies to issue substantive

policy recommendations for strengthening RF exposure 

regulation.” 2019 Order, 34 FCC Rcd. at 11,692. The silence 

of other expert agencies, however, does not constitute a 

reasoned explanation for the Commission’s decision to 

terminate its notice of inquiry for the same reason that the 

FDA’s conclusory statements do not constitute a reasoned 
16

explanation: silence does not indicate why the expert agencies 

determined, in light of evidence suggesting to the contrary, that 

exposure to RF radiation at levels below the Commission’s 

current limits does not cause negative health effects unrelated 

to cancer. Silence does not even indicate whether the expert 

agencies made any such determination, or whether they 

considered any of the evidence in the record. 

Our decision in EMR Network is not to the contrary. 

There, we rejected the argument that the Commission 

improperly delegated its NEPA duties by relying on input from 

other government agencies and non-governmental expert 

organizations in deciding whether to initiate a rulemaking to 

modify its RF radiation guidelines. 391 F.3d at 273. We found 

the Commission “not to have abdicated its responsibilities, but 

rather to have properly credited outside experts,” and noted that 

“the FCC’s decision not to leap in, at a time when the EPA (and 

other agencies) saw no compelling case for action, appears to 

represent the sort of priority-setting in the use of agency 

resources that is least subject to second-guessing by courts.” 

Id. (citing Am. Horse, 812 F.2d at 4). We agree with the 

dissenting opinion that the Commission may credit outside 

experts in deciding whether to initiate a rulemaking to modify 

its RF radiation guidelines. To be sure, “[a]gencies can be 

expected to respect the views of such other agencies as to those 

problems for which those other agencies are more directly 

responsible and more competent.” City of Boston Delegation 

v. FERC, 897 F.3d 241, 255 (D.C. Cir. 2018) (internal 

alteration and quotation marks omitted). What the 

Commission may not do, however, is rely on an outside 

expert’s silence or conclusory statements in lieu of some

reasoned explanation for its decision. And while it is certainly 

true that an agency’s decision not to initiate a rulemaking at a 

time when other agencies see no compelling case for action 

may represent “the sort of priority-setting in the use of agency 
17

resources that is least subject to second-guessing by courts,”

EMR Network, 391 F.3d at 273, the same is true of most agency 

decisions not to initiate a rulemaking, see Am. Horse, 812 F.2d 

at 4–5. Nevertheless, an agency’s decision not to initiate a 

rulemaking must have some reasoned basis, and an agency 

cannot simply ignore evidence suggesting that a major factual 

predicate of its position may no longer be accurate. Id. at 5. 

Nor does Cellular Phone Taskforce help the Commission. 

There, the Second Circuit rejected the argument that the 

Commission was required to consult with the Environmental 

Protection Agency (“EPA”) or other outside agencies before 

declining to modify its RF radiation guidelines in the face of 

new evidence regarding non-thermal effects caused by RF 

radiation. 205 F.3d at 90–91. In so holding, the Second Circuit 

found that “[i]t was fully reasonable for the FCC to expect the 

agency with primacy in evaluating environmental impacts to 

monitor all relevant scientific input into the FCC’s 

reconsideration, particularly because the EPA had been 

assigned the lead role in RF radiation health effects since 

1970,” and that the Commission was not required to “supply 

the new evidence to the other federal agencies with expertise 

in the area.” Id. at 91. But the Second Circuit did not hold that 

the Commission could rely solely on the silence or unexplained 

conclusions of other federal agencies to justify its own inaction. 

It merely held that the Commission was not required to consult 

with outside agencies before declining to modify its RF 

radiation guidelines. No party before us today questions the 

propriety of that holding. 

Finally, the Commission argues that the Commission itself 

addressed the major studies in the record in its order 

terminating the notice of inquiry. Specifically, the 

Commission points to its statement that “[t]he vast majority of 

filings were unscientific.” 2019 Order, 34 FCC Rcd. at 11,694. 
18

Elsewhere, however, the order acknowledges that “the record 

include[d] some research information” and “filings that sought 

to present scientific evidence.” Id. The order dismisses that 

research and evidence as “fail[ing] to make a persuasive case 

for revisiting our existing RF limits,” id., but again, such a 

conclusory statement cannot substitute for the minimal 

reasoning required at this stage, Am. Radio, 524 F.3d at 241. 

And while “[a]n agency is not obliged to respond to every 

comment, only those that can be thought to challenge a 

fundamental premise,” MCI WorldCom, Inc. v. FCC, 209 F.3d 

760, 765 (D.C. Cir. 2000), the studies in the record to which 

Petitioners point do challenge a fundamental premise of the 

Commission’s decision to terminate its notice of inquiry—

namely, the premise that exposure to RF radiation at levels 

below the Commission’s current limits does not cause negative 

health effects. But the Commission said nothing at all in its 

order about any specific health effects unrelated to cancer.

The Commission also points to its statement that “the 

record [does not] include actionable alternatives or 

modifications to the current RF limits supported by 

scientifically rigorous data or analysis.” 2019 Order, 34 FCC

Rcd. at 11,692; see also id. at 11,694. Had the notice of inquiry 

focused exclusively on whether the Commission should 

modify its RF exposure limits, we might agree that the failure 

of any commenter to propose actionable modifications to the 

RF limits would have justified the Commission’s decision to 

terminate the notice of inquiry. But the notice of inquiry did 

not focus exclusively on whether the Commission should 

modify its RF exposure limits. Instead, it also sought comment 

on how to better provide information to consumers and the 

public about exposure to RF radiation and methods for 

reducing exposure, and whether the Commission should 

impose additional precautionary restrictions on devices and 

facilities that are unlikely to expose people to RF radiation in 
19

excess of the Commission’s limits. The Commission needed 

no actionable alternative to its current limits in order to provide 

additional information to the public or to impose precautionary 

restrictions in addition to its current limits. The failure of any 

commenter to propose actionable modifications to the 

Commission’s RF exposure limits therefore does not justify the 

Commission’s decision to terminate the notice of inquiry. 

ii.

The Commission’s failure to provide a reasoned 

explanation for its determination that exposure to RF radiation 

at levels below its current limits does not cause negative health 

effects unrelated to cancer renders the order arbitrary and 

capricious in three additional respects. First, it undermines the 

Commission’s explanation for retaining its procedures for 

determining whether cell phones and other portable electronic 

devices comply with its RF limits. These procedures consist of 

testing the device against the head of a specialized mannequin, 

2013 Notice of Inquiry, 28 FCC Rcd. at 3,586 n.434, and no 

more than 2.5 centimeters away from the body of the 

mannequin, id. at 3,588 n.447. Petitioners claim that the testing 

is inaccurate because of the space between the device and the 

mannequin’s body. On this point, the Commission’s order 

cites the “large safety margin” incorporated in its existing RF 

exposure limits as a justification for its refusal to modify these 

procedures to include testing against the body. 2019 Order, 34 

FCC Rcd. at 11,696. Because the Commission’s existing RF 

limits are overprotective, the order explains, the Commission 

need not worry about whether its testing procedures accurately 

detect devices that are likely to expose people to RF emissions 

in excess of the Commission’s limits. See id. (“[E]ven if 

certified or otherwise authorized devices produce RF exposure 

levels in excess of Commission limits under normal use, such 

exposure would still be well below levels considered to be 
20

dangerous, and therefore phones legally sold in the United 

States pose no health risks.”). As the Commission itself 

recognizes, this explanation depends on the premise that RF 

radiation does not cause harmful effects at levels below its 

current limits. See id. at 11,696 n.49 (“We note that any claim 

as to the adequacy of the FCC required testing, certification, 

and authorization regime is no different than a challenge to the 

adequacy of the federal RF exposure limits themselves. Both 

types of claims would undermine the FCC’s substantive policy 

determinations.”). The Commission’s failure to provide a 

reasoned explanation for its determination that exposure to RF 

radiation at levels below its current limits does not cause 

negative health effects therefore renders inadequate the 

Commission’s explanation for its refusal to modify its testing 

procedures. 

Second, the Commission equally failed to provide a 

reasoned explanation for brushing off record evidence 

addressing non-cancer-related health effects arising from the 

impact of RF radiation on children. Many commenters, 

including the American Academy of Pediatrics, urged the 

Commission to adopt limits that account for the use of RFemitting devices by vulnerable children and pregnant women. 

See, e.g., J.A. 4,533–34. In dismissing those concerns, the 

Commission again relied on a conclusory statement from the 

FDA that “[t]he scientific evidence does not show a danger to 

any users of cell phones from RF exposure, including children 

and teenagers.” 2019 Order, 34 FCC Rcd. at 11,696. But, as 

we have already explained, such a conclusory and unexplained 

statement is not the “reasoned” explanation required by the 

APA. In addition, the Commission noted that the testing to 

determine compliance with its limits “represents a conservative 

case” for both adults and children. Id. at 11,696 n.50. Whether 

the testing of compliance with existing limits was conservative 

is not the point. The unanswered question remains whether low 
21

levels of RF radiation allowed by those existing limits cause 

negative health effects. So once again, the Commission’s 

failure to provide a reasoned or even relevant explanation of its 

position that RF radiation below the current limits does not 

cause health problems unrelated to cancer renders its 

explanation as to the effect of RF radiation on children arbitrary 

and capricious. 

Third, the Commission’s failure to provide a reasoned 

explanation for its determination that exposure to RF radiation 

at levels below its current limits does not cause negative health 

effects unrelated to cancer renders inadequate the 

Commission’s explanation for its failure to discuss the 

implications of long-term exposure to RF radiation, exposure 

to RF pulsation or modulation, or the implications of 

technological developments that have occurred since 1996, 

including the ubiquity of wireless devices and Wi-Fi, and the 

emergence of “5G” technology. In its brief, the Commission 

responds that it was not required to address these topics in its 

order because it “rationally concluded that the weight of 

scientific evidence does not support the existence of adverse 

health effects from radiofrequency exposure below the FCC’s 

limits, regardless of the service or equipment at issue.” 

Resp’t’s Br. at 45–46. (The Commission points out that “5G” 

cell towers, unlike traditional cell towers, are subject to its RF 

exposure limits.) Again, this explanation depends on the 

premise that RF radiation does not cause harmful health effects 

at levels below the Commission’s current limits, and will not 

suffice absent a reasoned explanation for the Commission’s 

determination that that premise is correct. 

iii.

In addition to the Commission’s inadequate response to 

the non-cancer-related effects of RF radiation on human health, 
22

the Commission also completely failed even to acknowledge, 

let alone respond to, comments concerning the impact of RF 

radiation on the environment. That utter lack of a response 

does not meet the Commission’s obligation to provide a 

reasoned explanation for terminating the notice of inquiry. The 

record contains substantive evidence of potential 

environmental harms. Most relevantly, the record included a 

letter from the Department of the Interior voicing concern 

about the impact of RF radiation from communication towers 

on migratory birds, see J.A. 8,379, 8,383–86. In the 

Department of the Interior’s expert view, the Commission’s RF 

radiation limits “continue to be based on thermal heating, a 

criterion now nearly 30 years out of date and inapplicable 

today.” J.A. 8,383. “The [current environmental] problem,” 

according to the Department of the Interior, “appears to focus 

on very low-level, non-thermal electromagnetic radiation.” Id. 

Although the Commission has repeatedly claimed that it 

considered “inputs from [its] sister federal agencies[,]” 2019 

Order, 34 FCC Rcd. at 11,689, the Commission entirely failed 

to address the environmental harm concerns raised by the 

Department of the Interior. To be sure, the Commission could 

conclude that the link between RF radiation and environmental 

harms is too weak to warrant an amendment to its RF radiation 

limits. All we hold now is that the Commission should have 

said something about its sister agency’s view rather than ignore 

it altogether. That lack of any reasoned explanation as to 

environmental harms does not satisfy the requirements of the 

APA. 

iv.

The dissenting opinion portrays this case as about the 

Commission’s disregard of just five articles and one 

Department of Interior letter. Not so. The record contained 

substantial information and material from, for example, the 
23

American Academy of Pediatrics, J.A. 4,533; the Council of 

Europe, J.A. 4,242–44, 4,247–57; the Cities of Boston and 

Philadelphia, J.A. 4,592–99; medical associations, see, e.g., 

J.A. 4,536–40 (California Medical Association); thousands of 

physicians and scientists from around the world, see, e.g., J.A. 

4,197–4,206 (letter to United Nations); J.A. 4,208–17 (letter to 

European Union); J.A. 5,173–86 (Frieburger Appeal by over 

one thousand German physicians); and hundreds of people who 

were themselves or who had loved ones suffering from the 

alleged effects of RF radiation, see, e.g., J.A. 8,774–9,940; see 

also J.A. 4,218–39 (collecting statements from physicians and 

health organizations expressing concern about health effects of 

RF radiation). 

The dissenting opinion then offers its own explanation as 

to why those select sources were not worth being addressed by 

the agency. This in-the-weeds assessment of scientific studies 

and assessments falls “outside our bailiwick[,]” Dissenting Op. 

at 10. More to the point, the Commission said none of what 

the dissenting opinion does. If it had and if those six sources

fairly represented the credible record evidence seeking a 

change in Commission policy, that discussion likely would 

have sufficed. But just as post hoc rationales offered by 

counsel cannot fill in the holes left by an agency in its decision, 

neither can a dissenting opinion. See Grace v. Barr, 965 F.3d 

883, 903 (D.C. Cir. 2020) (“[W]hen ‘assessing the 

reasonableness of [an agency’s action], we look only to what 

the agency said at the time of the [action]—not to its lawyers’ 

post-hoc rationalizations.’”) (second and third alterations in 

original) (quoting Good Fortune Shipping SA v. Commissioner, 

897 F.3d 256, 263 (D.C. Cir. 2018)). 

Instead, the Commission chose to hitch its wagon to the 

FDA’s unexplained disinterest in some similar information. 

Importantly, the dissenting opinion does not dispute that the 
24

FDA’s conclusory dismissal of that evidence ran afoul of our 

precedent in American Horse and American Radio. It just says 

that the deficiency in the FDA’s analysis cannot be imputed to 

a second agency, and so the dissenting opinion would hold 

dispositive “the fact that the Commission and the FDA are, to 

state the obvious, distinct agencies.” Dissenting Op. at 5. 

They certainly are. But that does not amount to a legal 

difference here. While imitation may be the highest form of 

flattery, it does not meet even the low threshold of reasoned 

analysis required by the APA under the deferential standard of 

review that governs here. One agency’s unexplained adoption 

of an unreasoned analysis just compounds rather than vitiates 

the analytical void. Said another way, two wrongs do not make 

a right. Compare City of Tacoma v. FERC, 460 F.3d 53, 76 

(D.C. Cir. 2006) (“[T]he action agency must not blindly adopt 

the conclusions of the consultant agency, citing that agency’s 

expertise. Rather, the ultimate responsibility for compliance 

with the [Endangered Species Act] falls on the action 

agency.”), and Ergon-West Virginia, Inc. v. EPA, 896 F.3d 

600, 612 (4th Cir. 2018) (“Although the EPA is statutorily 

required to consider the [Department of Energy]’s 

recommendation, it may not turn a blind eye to errors and 

omissions apparent on the face of the report, which [petitioner] 

pointed out and the EPA did not address in any meaningful 

way. In doing so, the EPA ‘ignore[d] important aspects of the 

problem.’”) (internal citations omitted), with Bellion Spirits, 

LLC v. United States, No. 19-5252, slip op. at 13–14 (D.C. Cir. 

Aug. 6, 2021) (approving consultation by the Alcohol and 

Tobacco Tax and Trade Bureau (“TTB”) with the FDA where 

the TTB “did not rubberstamp FDA’s analysis of the scientific 

evidence or delegate final decisionmaking authority to FDA,” 

but instead “systematically evaluated and explained its reasons 

for agreeing with FDA’s analysis of each scientific study” and 

“then made its own determinations” about the claims at hand).
25

B.

Petitioners’ remaining challenges under the APA are 

unavailing. 

Petitioners first argue that the Commission failed to 

respond to record evidence that exposure to RF radiation at 

levels below the Commission’s current limits may cause 

cancer. Specifically, Petitioners argue the Commission failed 

to mention the IARC’s classification of RF radiation as 

possibly carcinogenic to humans, and its 2013 monograph 

regarding that classification, on which the Commission’s 

notice of inquiry specifically sought comment. Petitioners also 

argue that the Commission failed to adequately respond to two 

2018 studies—the National Toxicology Program (“NTP”) 

study and the Ramazzini Institute study—that found increases 

in the incidences of certain types of cancer in rodents exposed 

to RF radiation. Had these 2018 studies been available prior to 

the IARC’s publication of its monograph, Petitioners assert, the 

IARC would have likely classified RF radiation as “probably 

carcinogenic,” rather than “possibly carcinogenic.” This is so, 

according to Petitioners, because the IARC will classify an 

agent as “possibly carcinogenic” if there is “limited evidence” 

that it causes cancer in humans and animals, and as “probably 

carcinogenic” if there is “limited evidence” that it causes 

cancer in humans and “sufficient evidence” that it causes 

cancer in animals. In its 2013 monograph, the IARC found 

“limited evidence” that RF radiation causes cancer in humans 

and animals, and therefore classified RF radiation as “possibly 

carcinogenic.” Int’l Agency for Rsch. on Cancer, Non-Ionizing 

Radiation, Part 2: Radiofrequency Electromagnetic Fields, 

102 IARC MONOGRAPHS ON THE EVALUATION OF 

CARCINOGENIC RISKS TO HUMANS 419 (2013) (emphases 

omitted). Petitioners assert that the NTP and Ramazzini 

Institute studies provide “sufficient evidence” that RF radiation 
26

causes cancer in animals. Therefore, according to Petitioners, 

had those studies been available prior to the IARC’s 

publication of its monograph, the IARC would have found 

“limited evidence” that RF radiation causes cancer in humans 

and “sufficient evidence” that it causes cancer in animals, and 

would have accordingly classified RF radiation as “probably 

carcinogenic.” 

Although the Commission’s failure to make any mention 

of the IARC monograph does not epitomize reasoned decision 

making, we find that the Commission’s order adequately 

responds to the record evidence that exposure to RF radiation 

at levels below the Commission’s current limits may cause 

cancer. In contrast to its silence regarding non-cancerous 

effects, the order provides a reasoned response to the NTP and 

Ramazzini Institute studies. It explains that the results of the 

NTP study “cannot be extrapolated to humans because (1) the 

rats and mice received RF radiation across their whole bodies; 

(2) the exposure levels were higher than what people receive 

under the current rules; (3) the duration of exposure was longer 

than what people receive; and (4) the studies were based on 2G 

and 3G phones and did not study WiFi or 5G.” 2019 Order, 34 

FCC Rcd. at 11,693 n.33. And the order cites a response to 

both studies published by the International Commission on 

Non-Ionizing Radiation Protection that provides a detailed 

explanation of various inconsistencies and limitations in the 

studies and concludes that “consideration of their findings does 

not provide evidence that radiofrequency EMF is 

carcinogenic.” INT’L COMM’N ON NON-IONIZING RADIATION 

PROT., ICNIRP NOTE ON RECENT ANIMAL CARCINOGENESIS 

STUDIES 6 (2018), https://www.icnirp.org/cms/

upload/publications/ICNIRPnote2018.pdf; see also 2019 

Order, 34 FCC Rcd. at 11,693 n.34. Petitioners’ contention 

that the IARC would have classified RF radiation as “probably 

carcinogenic” had the NTP and Ramazzini Institute studies 
27

been published earlier is speculative, particularly in light of the 

International Commission on Non-Ionizing Radiation 

Protection’s evaluation of those studies. And the IARC 

monograph’s classification of RF radiation as “possibly 

carcinogenic” is not so contrary to the Commission’s 

determination that exposure to RF radiation at levels below its 

current limits does not cause cancer as to render that 

determination arbitrary or capricious. 

Petitioners also argue that the Commission’s order 

impermissibly fails to respond to various “additional legal 

considerations.” Specifically, Petitioners argue that the order

(i) ignores “express invocations of constitutional, statutory and 

common law based individual rights,” including property 

rights and the rights of “bodily autonomy and informed 

consent”; (ii) fails to explain whether FCC regulation preempts 

rights and remedies under the Americans with Disabilities Act 

and the Fair Housing Act; (iii) does not assess the costs and 

benefits associated with maintaining the Commission’s current 

limits; (iv) does not resolve the question of whether “those 

advocating more protective limits have to prove the existing 

limits are inadequate,” or whether the Commission carries the 

burden of proving that its existing limits are adequate; and (v) 

overlooks that the Supreme Court’s decision in Jacobson v. 

Massachusetts, 197 U.S. 11 (1905), “flatly requires that the 

Commission allow for some remedy for those who suffer from 

exposure.” Pet’rs’ Br. at 84–101.

These arguments are not properly before us. The 

Communications Act provides that a petition for 

reconsideration is a “condition precedent to judicial review” of 

“questions of fact or law upon which the Commission . . . has 

been afforded no opportunity to pass.” 47 U.S.C. § 405(a). We 

will accordingly only consider a question raised before us if “a 

reasonable Commission necessarily would have seen the 
28

question . . . as part of the case presented to it.” NTCH, Inc. v. 

FCC, 841 F.3d 497, 508 (D.C. Cir. 2016) (quoting Time 

Warner Ent. Co. v. FCC, 144 F.3d 75, 81 (D.C. Cir. 1998)). 

Petitioners did not submit a petition for reconsideration to the 

Commission, and they point to no comments raising their 

“additional legal considerations” in such a manner as to 

necessarily indicate to the Commission that they were part of 

the case presented to it. 

Although Petitioners assert that the “Cities of Boston and 

Philadelphia specifically flagged [the issue of whether FCC 

regulation preempts rights and remedies under the Americans 

with Disabilities Act and the Fair Housing Act] and sought 

clarification,” Pet’rs’ Br. at 86, they are incorrect. The Cities 

of Boston and Philadelphia merely observed that the Second 

Circuit’s decision in Cellular Phone Taskforce did not address 

whether “‘electrosensitivity’ [is] a cognizable disability under 

the Americans with Disabilities Act,” J.A. 4,598. And the 

Cities noted that “the FCC and its sister regulatory agencies 

share responsibility for adherence to the ADA,” J.A. 4,598–99, 

and urged the Commission to “lead in advice to electrosensitive 

persons about prudent avoidance,” J.A. 4,599. This did not put 

the Commission on notice that the question whether FCC 

regulation preempts rights and remedies under the Americans 

with Disabilities Act and the Fair Housing Act was part of the 

case presented to it. Nor did a comment asserting that “[t]he 

telecommunications Act should not be interpreted to injure an 

identifiable segment of the population, exile them from their 

homes and their city, leave them no place where they can 

survive, and allow them no remedy under City, State or Federal 

laws or constitutions.” J.A. 10,190. And Petitioners point to 

no comments that did a better job of flagging their other 

“additional legal considerations” for the Commission. The 

Commission therefore did not have an opportunity to pass on 
29

these arguments, so we may not review them. 47 U.S.C. 

§ 405(a).

C.

Petitioners also argue that NEPA required the Commission 

to issue an EA or EIS regarding its decision to terminate its 

notice of inquiry. 

Petitioners are wrong. The Commission was not required 

to issue an EA or EIS because there was no ongoing federal 

action regarding its RF limits. The Commission already 

published an assessment of its existing RF limits that 

“‘functionally’ satisfied NEPA’s requirements ‘in form and 

substance.’” EMR Network, 391 F.3d at 272 (quoting Cellular 

Phone Taskforce, 205 F.3d at 94–95). NEPA obligations attach 

only to “proposals” for major federal action. See 42 U.S.C. § 

4332(c); see also 40 C.F.R. § 1502.5. Once an agency has 

satisfied NEPA’s requirements, it is only required to issue a 

supplemental assessment when “there remains major federal 

action to occur.” W. Org. of Res. Councils v. Zinke, 892 F.3d 

1234, 1242 (D.C. Cir. 2018) (internal quotation marks omitted)

(quoting Marsh v. Ore. Nat’l Res. Council, 490 U.S. 360, 374 

(1989)). An agency’s promulgation of regulations constitutes 

a final agency action that is not ongoing. Id. at 1243. Once an 

agency promulgates a regulation and complies with NEPA’s 

requirements regarding that regulation, it is not required to 

conduct any supplemental environmental assessment, even if

its original assessment is outdated. Id. at 1242. Such is the 

case here. As we explained in EMR Network in response to the 

argument that new data required the Commission to issue a 

supplemental environmental assessment of its RF guidelines 

under NEPA, “the regulations having been adopted, there is at 

the moment no ongoing federal action, and no duty to 
30

supplement the agency’s prior environmental inquiries.” 391 

F.3d at 272 (internal quotation marks and citation omitted). 

That the Commission voluntarily initiated an inquiry to 

“determine whether there is a need for reassessment of the 

Commission radiofrequency (RF) exposure limits and 

policies” does not change the analysis. 2013 Notice of Inquiry, 

28 FCC Rcd. at 3,501. As the Supreme Court explained long 

ago, “the mere contemplation of certain action is not sufficient 

to require an impact statement” under NEPA, Kleppe v. Sierra 

Club, 427 U.S. 390, 404 (1976) (internal quotation marks 

omitted), because, as in this case, “the contemplation of a 

project and the accompanying study thereof do not necessarily 

result in a proposal for major federal action,” id. at 406. See 

also Pub. Citizen v. Off. of U.S. Trade Representatives, 970 

F.2d 916, 920 (D.C. Cir. 1992) (“In accord with Kleppe, courts 

routinely dismiss NEPA claims in cases where agencies are 

merely contemplating a particular course of action but have not 

actually taken any final action at the time of suit.”) (collecting 

cases). Were the Commission to propose revising its RF 

exposure guidelines, it might be required to prepare NEPA 

documentation. But since the Commission for now has not 

proposed to alter its guidelines, it need not yet conduct any new 

environmental review.

III.

For the reasons given above, we grant the petitions in part 

and remand to the Commission to provide a reasoned 

explanation for its determination that its guidelines adequately 

protect against harmful effects of exposure to radiofrequency 

radiation unrelated to cancer. It must, in particular, (i) provide 

a reasoned explanation for its decision to retain its testing 

procedures for determining whether cell phones and other 

portable electronic devices comply with its guidelines, (ii)
31

address the impacts of RF radiation on children, the health

implications of long-term exposure to RF radiation, the 

ubiquity of wireless devices, and other technological 

developments that have occurred since the Commission last 

updated its guidelines, and (iii) address the impacts of RF 

radiation on the evironment. To be clear, we take no position 

in the scientific debate regarding the health and environmental 

effects of RF radiation—we merely conclude that the 

Commission’s cursory analysis of material record evidence 

was insufficient as a matter of law. As the dissenting opinion

indicates, there may be good reasons why the various studies 

in the record, only some of which we have cited here, do not 

warrant changes to the Commission’s guidelines. But we 

cannot supply reasoning in the agency’s stead, see SEC v. 

Chenery Corp., 318 U.S. 80, 87–88 (1943), and here the 

Commission has failed to provide any reasoning to which we 

may defer. 

So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, dissenting 

in part: “[A] court is not to substitute its judgment for that of 

the agency.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. 

Auto. Ins. Co., 463 U.S. 29, 43 (1983). We thus must “uphold 

a decision of less than ideal clarity if the agency’s path may 

reasonably be discerned.” Id. (quoting Bowman Transp., Inc. v. 

Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974)). I 

believe my colleagues’ limited remand contravenes these first 

principles of administrative law. Because I would deny the 

petitions in full, I respectfully dissent from Part II.A.i.–iv. and 

Part III of the majority opinion. 

I. 

It is important to emphasize how deferential our standard 

of review is here—where, first, an agency’s decision to 

terminate a notice of inquiry without initiating a rulemaking 

occurred after the agency opened the inquiry on its own and, 

second, the inquiry involves a highly technical subject matter 

at the frontier of science. As the majority recognizes, “[t]he 

arbitrary and capricious standard of the Administrative 

Procedure Act ‘encompasses a range of levels of deference to 

the agency.’” Maj. Op. 8 (quoting Am. Horse Prot. Ass’n v. 

Lyng, 812 F.2d 1, 4 (D.C. Cir. 1987)). The majority further 

acknowledges that the Federal Communications Commission’s 

(Commission or FCC) “order is entitled to a high degree of 

deference.” Id. at 9. And our precedent also makes plain that 

“[i]t is only in the rarest and most compelling of circumstances 

that this court has acted to overturn an agency judgment not to 

institute rulemaking.” WWHT, Inc. v. FCC, 656 F.2d 807, 818 

(D.C. Cir. 1981); see also Cellnet Commc’n, Inc. v. FCC, 965 

F.2d 1106, 1111 (D.C. Cir. 1992) (“an agency’s refusal to 

initiate a rulemaking is evaluated with a deference so broad as 

to make the process akin to non-reviewability”). For the 

reasons that follow, I believe the Commission’s order does not 

fit those rarest and most compelling circumstances. 
2 

A. 

We have held that research articles containing tentative 

conclusions do not provide a basis for disturbing an agency’s 

decision not to initiate rulemaking. See EMR Network v. FCC, 

391 F.3d 269, 274 (D.C. Cir. 2004). Nevertheless, the majority 

rejects reaching the same conclusion here regarding the 

petitioners’ assertion that radiofrequency (RF) radiation 

exposure below the Commission’s limits can cause negative 

health effects unrelated to cancer. To do so, it relies on five 

research articles in an over 10,500-page record. See Maj. Op.

at 10–11.1

 

A close inspection of the five research articles confirms 

that they also “are nothing if not tentative.” EMR Network, 391 

F.3d at 274. The Foerster article concludes “[o]ur findings do 

not provide conclusive evidence of causal effects and should be 

interpreted with caution until confirmed in other populations.” 

Joint Appendix (J.A.) 6,006 (Milena Foerster et al., A 

Prospective Cohort Study of Adolescents’ Memory 

Performance and Individual Brain Dose of Microwave 

Radiation from Wireless Communication, 126 ENV’T HEALTH 

PERSPS. 077007 (July 2018)) (emphases added).2 The Lai 

1

 “The record in an informal rulemaking proceeding is ‘a less 

than fertile ground for judicial review’ and has been described as a 

‘sump in which the parties have deposited a sundry mass of 

materials.’” Pro. Drivers Council v. Bureau of Motor Carrier Safety, 

706 F.2d 1216, 1220–21 (D.C. Cir. 1983) (quoting Nat’l Res. Def. 

Council, Inc. v. SEC, 606 F.2d 1031, 1052 (D.C. Cir. 1979)). 

2 See also J.A. 5,995 (“[T]he health effects of [exposure to 

radiofrequency electromagnetic fields (RF-EMFs)] are still 

unknown. . . . [T]o date studies addressing this topic have produced 

inconsistent results.”); J.A. 6,005 (“Although we found decreases in 

figural memory, some experimental and epidemiological studies on 
3 

article provides a similarly murky picture of the current 

science. See J.A. 5,320–68 (Henry Lai, A Summary of Recent 

Literature (2007–2017) on Neurological Effects of 

Radiofrequency Radiation, in MOBILE COMMC’NS & PUB.

HEALTH 187–222 (M. Markov ed., 2018)). In summarizing the 

results of human studies on the behavioral effects of RF 

radiation, the Lai article lists 31 studies that showed no 

significant behavioral effects compared to 20 studies that 

showed behavioral effects. See J.A. 5,327–32. Moreover, of the 

20 studies that showed a behavioral effect, at least four found 

behavioral improvements, not negative health effects. 

Even the Yakymenko article, which asserts that 93 of 100 

peer-reviewed studies found low-intensity RF radiation 

induces oxidative effects in biological systems, fails to address 

the critical issue—whether RF radiation below the 

Commission’s current limits can cause negative health effects. 

See J.A. 5,243–58 (Igor Yakymenko et al., Oxidative 

Mechanisms of Biological Activity of Low-Intensity 

Radiofrequency Radiation, ELECTROMAGNETIC BIOLOGY &

MED., EARLY ONLINE, 1–16 (2015)). Specifically, the 

Yakymenko article discusses the International Commission on 

Non-Ionizing Radiation Protection’s (ICNIRP) recommended 

RF exposure limit—a specific absorption rate of 2 W/kg. See

J.A. 5,243–44. But the ICNIRP’s recommended RF exposure 

limit is significantly higher than the Commission’s current 

limit—0.08 W/kg averaged over the whole body and a peak 

spatial-average of 1.6 W/kg over any 1 gram of tissue. See 47 

C.F.R. § 1.1310(c). Accordingly, it is uncertain how many, if 

RF-EMF found improvements in working memory performance.”) 

(emphasis added). 
4 

any, of the referenced peer-reviewed studies were conducted at 

RF radiation levels below the Commission’s current limits.3

Given this record, I believe we should have arrived at the 

same conclusion we did in EMR Network—“nothing in th[e]se 

studies so strongly evidenc[es] risk as to call into question the 

Commission’s decision to maintain a stance of what appears to 

be watchful waiting.” EMR Network, 391 F.3d at 274. “An 

agency is not obliged to respond to every comment, only those 

that can be thought to challenge a fundamental premise.” MCI 

WorldCom, Inc. v. FCC, 209 F.3d 760, 765 (D.C. Cir. 2000). 

A review of the five articles on which the majority opinion 

relies makes plain that the articles do not challenge a 

fundamental premise of the Commission’s order. Instead, it 

“cherry-pick[s] the factual record to reach [its] conclusion.” 

Ortiz-Diaz v. U.S. Dep’t of Hous. & Urb. Dev., 867 F.3d 70, 79 

(D.C. Cir. 2017) (Henderson, J., concurring in the judgment). 

My colleagues assert that “[t]he dissenting opinion 

portrays this case as about the Commission’s disregard of just 

five articles.” Maj. Op. 22. But their attempt to “turn the tables” 

plainly fails. It is they who chose the five articles, see Maj. Op. 

10–11, to rely on as the basis for their remand, see id. at 15 

(“the Commission’s order remains bereft of any explanation as 

to why, in light of the studies in the record, its guidelines 

remain adequate”) (emphasis altered); id. at 18 (“the studies in 

the record to which Petitioners point do challenge a 

fundamental premise of the Commission’s decision to 

terminate its notice of inquiry”) (first emphasis added). I 

discuss the five articles only to demonstrate that the studies “are 

nothing if not tentative.” EMR Network, 391 F.3d at 274. 

Because the studies on which the majority relies plainly are 

3

 The BioInitiative Report the majority opinion cites is hardly 

worth discussing because the self-published report has been widely 

discredited as a biased review of the science. 
5 

tentative, they do not challenge a fundamental premise of the 

Commission’s decision and therefore cannot provide the basis 

for the majority’s limited remand under our precedent.4

B. 

 I reach the same conclusion regarding the majority’s 

remand of the petitioners’ environmental harm argument. See 

Maj. Op. 21–22. The majority relies on a 2014 letter from the 

U.S. Department of the Interior (Interior) to the U.S. 

Department of Commerce about, inter alia, the impact of 

communications towers on migratory birds. But the Interior 

letter itself concedes that “[t]o date, no independent, third-party 

field studies have been conducted in North America on impacts 

of tower electromagnetic radiation on migratory birds.” J.A. 

8,383. 

Moreover, the petitioners did not raise the Interior letter in 

the environmental harm section of their briefs. “We apply 

forfeiture to unarticulated [legal and] evidentiary theories not 

only because judges are not like pigs, hunting for truffles 

buried in briefs or the record, but also because such a rule 

ensures fairness to both parties.” Jones v. Kirchner, 835 F.3d 

74, 83 (D.C. Cir. 2016) (alteration in original) (citation 

omitted). And finally, the environmental harm studies on which 

4

 The majority’s hand wave to other record information, see 

Maj. Op. 22–23, does not carry the day. Rather than provide 

“substantial information,” id. at 22, the cited material consists 

primarily of letters expressing generalized concerns about RF limits 

worldwide. 
6 

the petitioners did rely “are nothing if not tentative.” EMR 

Network, 391 F.3d at 274.5

C. 

More importantly, the majority’s limited remand runs 

afoul of our precedent on this precise subject matter. In EMR 

Network, the petitioner asked “the Commission to initiate an 

inquiry on the need to revise [its] regulations to address the 

non-thermal effects” of RF radiation. 391 F.3d at 271. In 

denying the petition, we concluded “the [Commission]’s 

decision not to leap in, at a time when the [Environmental 

Protection Agency (EPA)] (and other agencies) saw no 

compelling case for action, appears to represent the sort of 

priority-setting in the use of agency resources that is least 

subject to second-guessing by courts.” Id. at 273. 

This time around, the majority faults the Commission for 

the U.S. Food and Drug Administration’s (FDA) allegedly 

“conclusory statements” in response to the Commission’s 2013 

notice of inquiry. See Maj. Op. 14. The crux of the majority’s 

position is that “[t]he statements from the FDA on which the 

Commission’s order relies are practically identical to the 

Secretary’s statement in American Horse and the 

5 See, e.g., J.A. 5,231 (Albert Manville, II, A Briefing 

Memorandum: What We Know, Can Infer, and Don’t Yet Know 

about Impacts from Thermal and Non-Thermal Non-Ionizing 

Radiation to Birds and Other Wildlife 2 (2016)) (“the direct 

relationship between electromagnetic radiation and wildlife health 

continues to be complicated and in cases involving non-thermal 

effects, still unclear”); J.A. 6,174 (Ministry of Env’t & Forest, Gov’t 

of India, Report on Possible Impacts of Communication Towers on 

Wildlife Including Birds and Bees 4 (2011)) (“exact correlation 

between radiation of communication towers and wildlife, are not yet 

very well established”). 
7 

Commission’s statement in American Radio.” Id.6

 But the 

analogy to American Horse and American Radio does not hold 

water. The majority’s Achilles’ heel is the fact that the 

Commission and the FDA are, to state the obvious, distinct 

agencies. 

In American Horse, the appellant relied on the results of a 

study commissioned by the U.S. Department of Agriculture 

(Agriculture) to support its request for revised Agriculture 

regulations. Am. Horse, 812 F.2d at 2–3. The study found that 

devices Agriculture had declined to prohibit caused effects 

falling within the statutory definition of the condition known 

as “sore”;7 and the Congress had charged Agriculture to 

eliminate the practice of soring show horses. Am. Horse, 812 

F.2d at 2–3. Against this backdrop, we found the Agriculture 

Secretary’s “two conclusory sentences [dismissing the need to 

revise agency regulations] . . . insufficient to assure a 

reviewing court that the agency’s refusal to act was the product 

of reasoned decisionmaking.” Id. at 6. But an agency head’s 

terse dismissal of his own agency’s study is not the case here. 

First, as noted supra, there is no conclusive study in the record, 

much less one commissioned by the agency whose regulations 

are being considered for revision. Instead, the record contains 

dozens of highly technical studies from various sources—the 

credibility and findings of which we are ill-equipped to 

evaluate. And crucially, unlike in American Horse, the 

Commission requested the opinion of the FDA—the agency 

charged with “establish[ing] and carry[ing] out an electronic 

6 See Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227 (D.C. 

Cir. 2008).

7 See 15 U.S.C. § 1821(3) (“The term ‘sore’ when used to 

describe a horse means that [as a result of any substance or device 

used on a horse’s limb] such horse suffers, or can reasonably be 

expected to suffer, physical pain or distress, inflammation, or 

lameness when walking, trotting, or otherwise moving . . . .”). 
8 

product radiation control program,” 21 U.S.C. § 360ii(a)—

studied that opinion and explained why it relied thereon in 

making its decision. 

Similarly, in American Radio, the studies summarily 

dismissed by the FCC were studies the FCC sought to evaluate 

itself; we remanded for the FCC to explain why it failed to do 

so. See Am. Radio, 524 F.3d at 241. Moreover, American Radio 

addressed the reasoning underlying the FCC’s promulgation of 

a rule, an action subjected to far less deference than an agency’s 

decision not to initiate a rulemaking.8

I believe the Commission reasonably relied on the 

conclusions of the FDA, the agency statutorily charged with 

protecting the public from RF radiation. See 21 U.S.C. 

§ 360ii(a) (FDA “shall establish and carry out an electronic 

product radiation control program designed to protect the 

public health and safety from electronic product radiation”).9

Our precedent is well-settled that “[a]gencies can be expected 

to ‘respect [the] views of such other agencies as to those 

8 See, e.g., ITT World Commc’ns, Inc. v. FCC, 699 F.2d 1219, 

1245–46 (D.C. Cir. 1983), rev’d on other grounds, 466 U.S. 463 

(1984) (“Where an agency promulgates rules, our standard of review 

is diffident and deferential, but nevertheless requires a searching and 

careful examination of the administrative record to ensure that the 

agency has fairly considered the issues and arrived at a rational 

result. Where, as here, an agency chooses not to engage in 

rulemaking, our level of scrutiny is even more deferential . . .” 

(emphasis in original) (footnotes and internal quotations omitted)). 

9 See also In re Guidelines for Evaluating the Env’t Effects of 

Radiofrequency Radiation, 11 FCC Rcd. 15,123, 15,130 ¶ 18 (1996) 

(“The FDA has general jurisdiction for protecting the public from 

potentially harmful radiation from consumer and industrial devices 

and in that capacity is expert in RF exposures that would result from 

consumer or industrial use of hand-held devices such as cellular 

telephones.”). 
9 

problems’ for which those ‘other agencies are more directly 

responsible and more competent.’” City of Bos. Delegation v. 

FERC, 897 F.3d 241, 255 (D.C. Cir. 2018) (second alteration 

in original) (quoting City of Pittsburgh v. Fed. Power Comm’n, 

237 F.2d 741, 754 (D.C. Cir. 1956)). That is precisely what the 

Commission did here. 

The Commission’s 2013 Notice of Inquiry explained that 

the Commission intended to rely on, inter alia, the FDA to 

determine whether to reassess its own RF exposure limits. See 

In re Reassessment of Fed. Commc’ns Comm’n 

Radiofrequency Exposure Limits & Policies, 28 FCC Rcd. 

3,498, 3,501 ¶ 6 (2013) (2013 Notice of Inquiry) (“Since the 

Commission is not a health and safety agency, we defer to other 

organizations and agencies with respect to interpreting the 

biological research necessary to determine what [RF radiation] 

levels are safe.”). And the Commission has consistently 

deferred to expert health and safety agencies in this context. 

See id. at 3,572 ¶ 211 (RF exposure limits adopted in 1996 

“followed recommendations received from the [EPA], the 

[FDA], and other federal health and safety agencies”).10

The Commission was true to its word. On March 22, 2019, 

it asked the FDA if changes to the RF exposure limits were 

10 See also In re Guidelines for Evaluating the Env’t Effects of 

Radiofrequency Radiation, 12 FCC Rcd. 13,494, 13,505 ¶ 31 (1997) 

(“It would be impracticable for us to independently evaluate the 

significance of studies purporting to show biological effects, 

determine if such effects constitute a safety hazard, and then adopt 

stricter standards that [sic] those advocated by federal health and 

safety agencies. This is especially true for such controversial issues 

as non-thermal effects and whether certain individuals might be 

‘hypersensitive’ or ‘electrosensitive.’”).
10 

warranted by the current scientific research.11 On April 24, 

2019, the FDA responded: 

FDA is responsible for the collection and 

analysis of scientific information that may 

relate to the safety of cellphones and other 

electronic products. . . . As we have stated 

publicly, . . . the available scientific evidence to 

date does not support adverse health effects in 

humans due to exposures at or under the current 

limits, and . . . the FDA is committed to 

protecting public health and continues its 

review of the many sources of scientific 

literature on this topic. 

J.A. 8,187 (Letter from Jeffrey Shuren, M.D., J.D., Dir., Ctr. 

for Devices and Radiological Health, U.S. Food & Drug 

Admin., Dep’t of Health & Hum. Servs., to Julius Knapp, 

Chief, Off. of Eng’g & Tech., U.S. Fed. Commc’ns Comm’n 

(April 24, 2019)).12 In my view, the Commission, relying on 

11 See J.A. 8,184 (Letter from Julius Knapp, Chief, Off. of Eng’g 

& Tech., U.S. Fed. Commc’ns Comm’n, to Jeffrey Shuren, M.D., 

J.D., Dir., Ctr. for Devices and Radiological Health, U.S. Food & 

Drug Admin. (March 22, 2019)) (“Given that existing studies are 

continually being evaluated as new research is published, and that 

the work of key organizations such as [the Institute of Electrical and 

Electronics Engineers] and ICNIRP is continuing, we ask FDA’s 

guidance as to whether any changes to the standards are appropriate 

at this time.”). 

12 See also Statement from Jeffrey Shuren, M.D., J.D., director 

of the FDA’s Center for Devices and Radiological Health on the 

recent National Toxicology Program draft report on radiofrequency 

energy exposure, FOOD & DRUG ADMIN. (Feb. 2, 2018), 

https://www.fda.gov/news-events/press-announcements/statementjeffrey-shuren-md-jd-director-fdas-center-devices-and-radiologicalhealth-recent-national (Since 1999, “there have been hundreds of 
11 

the FDA, reasonably concluded no changes to the current RF 

exposure limits were warranted at the time. See In re 

Reassessment of Fed. Commc’ns Comm’n Radiofrequency 

Exposure Limits & Policies, 34 FCC Rcd. 11,687, 11,691 ¶ 10 

(2019) (2019 Order). 

Simply put, the Commission’s reliance on the FDA is 

reasonable “[i]n the face of conflicting evidence at the frontiers 

of science.” See Cellular Phone Taskforce v. FCC, 205 F.3d 

82, 90 (2d Cir. 2000). The majority takes issue with what it 

categorizes as “conclusory statements.” Maj. Op. 14. But the 

Supreme Court’s “State Farm [decision] does not require a 

word count; a short explanation can be a reasoned 

explanation.” Am. Radio, 524 F.3d at 247 (Kavanaugh, J., 

dissenting in part). Brevity is even more understandable if the 

agency whose rationale is challenged relies on the agency the 

Congress has charged with regulating the matter. 

Granted, “[w]hen an agency in the Commission’s position 

is confronted with evidence that its current regulations are 

inadequate or the factual premises underlying its prior 

judgment have eroded, it must offer more to justify its decision 

to retain its regulations than mere conclusory statements.” Maj. 

studies from which to draw a wealth of information about these 

technologies which have come to play an important role in our 

everyday lives. Taken together, all of this research provides a more 

complete picture regarding radiofrequency energy exposure that has 

informed the FDA’s assessment of this important public health issue, 

and given us the confidence that the current safety limits for cell 

phone radiation remain acceptable for protecting the public 

health. . . . I want to underscore that based on our ongoing evaluation 

of this issue and taking into account all available scientific evidence 

we have received, we have not found sufficient evidence that there 

are adverse health effects in humans caused by exposures at or under 

the current radiofrequency energy exposure limits.”). 
12 

Op. 9. But the majority opinion rests on an inaccurate 

premise—the Commission was not confronted with evidence 

that its regulations are inadequate nor have the factual premises 

underlying its RF exposure limits eroded. Sifting through the 

record’s technical complexity is outside our bailiwick. If the 

record here establishes one point, however, it is that there is no 

scientific consensus regarding the “non-thermal” effects, if 

any, of RF radiation on humans. More importantly, the FDA, 

not the Commission, made the allegedly “conclusory 

statements” with which the majority takes issue and I believe 

the Commission adequately explained why it relied on the 

FDA’s expertise.13

13 The majority asserts that “[o]ne agency’s unexplained 

adoption of an unreasoned analysis just compounds rather than 

vitiates the analytical void.” Maj. Op. 24. As set out supra, however, 

the Commission adequately explained its reliance—for the past 25 

years—on the FDA’s RF exposure expertise. Plus, after a review of 

“hundreds of studies,” the FDA’s conclusion is far from unreasoned. 

See supra note 12. And the two cases to which the majority points 

are inapposite. See Maj. Op. 24 (citing City of Tacoma v. FERC, 460 

F.3d 53, 76 (D.C. Cir. 2006), and Ergon-West Virginia, Inc. v. EPA, 

896 F.3d 600, 612 (4th Cir. 2018)). Importantly, unlike these 

petitions, neither case involves a decision not to initiate a 

rulemaking. As noted, inaction is reviewed under an especially 

deferential standard. It would be inappropriate to apply precedent 

using a less deferential standard to modify the standard applicable 

here. And finally, the Commission did not “blindly adopt the 

conclusions” of the FDA. See City of Tacoma, 460 F.3d at 76. Nor 

did it “turn a blind eye to errors and omissions apparent on the face 

of” the FDA’s conclusions. See Ergon-West Virginia, 896 F.3d at 

612. 

The majority’s citation to Bellion Spirits, LLC v. United States, 

No. 19-5252 (D.C. Cir. Aug. 6, 2021), is even further afield. First, 

Bellion Spirits addressed a “statutory authority” question—it did not 

apply arbitrary and capricious review, much less the especially 
13 

As in EMR Network, the record does not “call into question 

the Commission’s decision to maintain a stance of what 

appears to be watchful waiting.” 391 F.3d at 274. To hold 

otherwise begs the question: what was the Commission 

supposed to do? It has no authority over the level of detail the 

FDA provides in response to the Commission’s inquiry. It 

admits that it does not have the expertise “to interpret[] the 

biological research necessary to determine what [RF radiation] 

levels are safe.” 2013 Notice of Inquiry, 28 FCC Rcd. at 3,501 

¶ 6. The Commission opened the 2013 Notice of Inquiry “as a 

matter of good government” despite its 

“continue[d] . . . confidence in the current [RF] exposure 

limits.” Id. at 3,570 ¶ 205. If it had reached a conclusion 

contrary to the FDA’s, it most likely would have been attacked 

as ultra vires. For us to require the Commission to, in effect, 

“nudge” the FDA stretches both our jurisdiction as well as its 

authority beyond recognized limits. 

Accordingly, I respectfully dissent from the limited 

remand set forth in Part II.A.i.–iv. and Part III of the majority 

opinion.14

deferential standard applicable to a decision not to initiate a 

rulemaking. See Bellion Spirits, slip op. at 13. Second, to the extent 

Bellion Spirits is remotely relevant, I believe it supports my position. 

There, the Alcohol and Tobacco Tax and Trade Bureau “consulted 

with [the] FDA on a matter implicating [the] FDA’s expertise and 

then considered that expertise in reaching its own final decision.” Id. 

at 14. Again, in my view, the Commission did the same thing. 

14 Although I join Part II.B. of the majority opinion, I do not 

agree with the majority’s aside, contrasting the Commission’s 

purported silence regarding non-cancerous effects and its otherwise 

reasoned response. See Maj. Op. 26. As explained supra, I believe 

the Commission reasonably relied on the FDA’s conclusion that RF 

radiation exposure below the Commission’s limits does not cause 

negative health effects—cancerous or non-cancerous.