NSR Policy: Wireless Update: Kennedy Cancer Concerns

Plus, a Round One Win for T on 4.9 GHz, TMUS modifies DEI initiative, Carr Signals Hope for Reallocating Military Spectrum as CTIA Presses on Its Spectrum Needs and Its New Leader (Pai) Signals Splits with Carr on Merger Review Approach

What’s New: While there have been major developments in the last week on the future of USF (LINK), BEAD (LINK), and merger reviews (LINK), there have been smaller, but still significant, developments related to the future of wireless services. In this update, we cover those developments. The one carries the most potential significance is the continuing crusade by HHS Secretary Kennedy (RFK) against cell phones and RF emissions. As we discuss, if he uses the institutions under his control to push his ideas on these topics, that could create numerous headaches for the industry, unless the FCC Chair uses his influence with the White House to counter those efforts. In addition, we discuss the first-round win for T on the 4.9 GHz spectrum, TMUS modifying its DEI program in hopes of an easier merger review, the FCC Chair predicting a resolution with the Department of Defense on the spectrum sought by industry, the industry trade association ramping up their efforts to tie their spectrum needs to American economic development and the curious case of their new leader implicitly criticizing the FCC Chair’s approach to merger reviews.

Kennedy continues crusade against cell phones, raising cancer scare.

As we discussed in a note in last fall, (LINK) the now Secretary of Health and Human Services has previously regarded all manner of RF emissions as a health risk. He still does. Recently, in an interview with Fox News, he said that cellphones “produce electromagnetic radiation, which has been shown to do neurological damage to kids when it’s around them all day, and to cause cellular damage and even cancer.”[1]. We won’t repeat everything we wrote before, but we do want to emphasize the ways that someone in his position with the views he has can affect the economics of the wireless companies.

How RFK can Affect Wireless Services. While RFK does not have direct regulatory authority over the wireless services, he can nonetheless affect the economic and regulatory environment in a variety of ways.

On a personal level, he can publicize claims, regardless of the scientific support

He has bully pulpit to air his thoughts, likely moving more of the public to adopt his fears.
This could influence local siting proceedings, fueling the efforts of opponents of siting wireless facilities, slowing down and perhaps event preventing the siting of essential facilities for improving services.[2]

On an institutional level, he can change the way institutions he runs address issues which will have a collateral impact on other institutions like the FCC.

The Food and Drug Administration (FDA) has rejected requests from the public that it reevaluate its current position on RF and health. RFK could instruct the FDA to reevaluate its approach and attempt to get other government institutions to act to reduce RF emissions in a variety of settings.
The FCC relies heavily on the FDA for how it approaches the risks of RF exposure. For example, the FCC’s webpage on RF exposure begins by noting “the FDA has issued guidelines for safe RF emission levels from microwave ovens, has reviewed scientific literature of relevance to RF exposure and continues to monitor exposure issues related to the use of certain RF devices such as cell phones” and links to the FDA page on RF and health.
Similarly, the FDA endorses the current FCC approach to cell phone safety and further, in terms of public education, states clearly that “To date, there is no consistent or credible scientific evidence of health problems caused by the exposure to radio frequency energy emitted by cell phones.”
If the FDA reverses itself and comes to the same conclusions as EHT, that will require changes in how the FCC communicates with the public and sets its own policies related to RF emissions.
In addition, as HHS Secretary, RFK oversees the National Institute for Occupational Safety and Health (NIOSH). While NIOSH has studied RF exposure for workers, it has never adopted final guidelines. NIOSH could adopt RF exposure guidelines that not only cause issues for the workplace in terms of reducing such exposure, but the justification can also be used in other settings (such as with the FCC and local siting authorities) that create greater costs for the wireless industry while degrading service.
As he has done with other issues, such as establishing a link between vaccines and autism, he can hire scientists of questionable credentials to run studies that purport to prove his previously held view.

On a legal level, he can affect the way the FCC responds to the Court Order in a case in which he was a lawyer designed to force the FCC to study the health effects of RR

In 1996, the FCC adopted guidelines which only protect consumers from adverse effects of RF emissions. In 2019, the FCC reviewed the guidelines and unanimously agreed to uphold them.
In 2020, a group of plaintiffs, including RFK’s Children’s Health Defense[3] and the Environmental Health Trust (EHT), filed a suit to force the FCC to review its decision.[4]
In 2021, the United States Court of Appeals for the District of Columbia Circuit ruled the 2019 Commission’s order was “arbitrary and capricious in its complete failure to respond to comments concerning environmental harm caused by RF radiation.” The FCC has not yet acted on the Court’s order.
In response to the court decision, RFK said “The court’s decision exposes the FCC and FDA as captive agencies that have abandoned their duty to protect public health in favor of a single-minded crusade to increase telecom industry profits.”[5]
RFK could use his HHS platform and his government lawyers to put pressure on the FCC to respond to the court decision.
If that happens, the FCC, as it has done in the past, will have to rely heavily on the FDA’s expertise to justify its own conclusions.
If the FDA adopts the scientific positions of the EHT, for example, the FCC will not be able to uphold its prior regulatory framework, affecting various FCC rules and proceedings related to RF emissions.

Big Question: Will Carr or others in the Administration force a confrontation with RFK at the White House over these issues? If all RFK does is give an occasional interview in which he repeats what he told Fox, we don’t see that his words alone will have much of a market impact. But if he increases the frequency of his comments and takes other actions, we see that as a negative for the industry.

Then the question will be whether Chairman Carr or others in the Administration[6] will use their political capital with the White House to get them to limit RFK’s efforts related to information about the negative impacts on health of RF emissions.

Bottom Line: As described in our earlier note, we doubt RFK will retreat from his previous assertions about the dangers of RF emissions and in doing so, he could potentially slow down and raise the costs of deploying next generation wireless networks and services.

Quick Hits

T wins first round of 4.9 GHz litigation. Various public safety groups have argued over whether the 4.9 GHz band should remain under local public safety control (the approach favored by a group aligned with TMUS and VZ) or provided to FirstNet (the approach favored by T.)FirstNet/T won the first round at the FCC. This would have the effect of making 50 megahertz of spectrum, reportedly worth between $3 and $14 billion, available for exclusive commercial use by T at no cost to the company.[7] The battle now is in the courts.

In the first round, the judge denied a request by several opponents of the FCC decision for a Temporary Restraining Order.

While T is the effective winner of the first round, the decision is not predictive of what a judge on the merits will do. The panel of judges made it clear that obtaining a TRO has a high bar that the petitioners had not met, saying “Movants have not satisfied the stringent requirements for a stay pending court review.”
The next round will not have such a high bar for those seeking to overturn the FCC decision.
Further, the arguments were not the complete set of statutory arguments that we expect to see in the next round.

The next round will be more decisive.

We understand that the schedule for the briefs for the next round will be set in April, with briefs likely due by the end of the year and oral arguments in 1Q26.
In the past, a unanimous decision at the FCC was likely to be upheld. In the post-Chevron era, however, courts are likely to feel emboldened to overturn the FCC legal analysis. We await briefings and oral arguments to obtain greater conviction but as or now we give a slight edge to the TMUS and VZ backed organization, though we note that the court could remand the issue to the FCC to assure that no current users are harmed, which would be a win for T.

TMUS agrees to changes in its DEI program. As discussed last week (LINK), considering Chairman Carr’s pronouncement that companies with DEI programs should not expect FCC approval of any merger they are involved with, we expected TMUS to modify their employment practices to gain support for their pending deals. Last Friday, TMUS sent Carr a letter stating it would:

Modify its approach to supplier diversity;
Eliminate specific targets or goals for diverse spend in its procurement policies;
Dissolve its External Diversity & Inclusion Councils[8];
But that TMUS remains committed to the principle that we can best serve our customers, employees, and shareholders through a diversely talented workforce and supplier base that comes from all walks of life.

We don’t know whether this offer will be sufficient to satisfy Carr but believe that ultimately the issue will be resolved and TMUS will obtain approval for the transactions.

Carr Signals Hope for Reallocating Military Spectrum. Speaking at a conference last week, FCC Chair Carr expressed optimism that the wireless industry would be able to obtain their desired access to the lower 3 band currently used by the Defense Department.

He said “We’ve met with officials at the White House that have convened actors across the federal government, and I know there are conversations that have taken place with [Defense Secretary Pete Hegseth], and I’m pretty confident that we’ll find a path forward that’s going to work for national security interests, for economic interests. It’s got to happen.”
We acknowledge he has been in meetings we have not, and that further, his optimism is shared by others, including the affected companies, about the likely outcome of the Congressional debate,
Still, based on public information, we are skeptical of that optimism.
We see no public signs that the Defense Department has changed their economic estimate of the costs of moving their radars off the spectrum in question.
We see no public signs that Republican Senators who have supported the Defense Department position have changed their views.
We note that Sen. Mike Rounds (R-S.D.), a leading opponent against taking mid-band spectrum from the DoD has questioned Defense Department nominees whether reallocating this spectrum to the wireless industry is a good idea. All said it isn’t.
At a hearing last week, CIA Director John Ratcliffe answered a question about spectrum by noting that “I think we need to be concerned that a public auction at bands at certain levels would have an impact on our ability to deliver an accurate intelligence picture to the Commander-in-chief.”
Further the spectrum at issue is apparently important to the Pentagon’s efforts to build the iron dome that Trump wants build. (LINK)

Bottom Line: We have no doubt that Carr will be a strong advocate within the Administration for the spectrum but so far have seen no public signs that the Department of Defense is modifying its position nor that its supporters on Capital Hill are backing away from their earlier positions. Of course, that may change as we get closer to the actual legislation being voted upon.

CTIA Provides More Economic Analysis to Bolster Spectrum efforts. CTIA just released a study that it believes demonstrates the cost to the economy of not allocating more mid-band spectrum to the wireless industry. Among other things, the study concludes:

By 2027, networks will be unable to meet nearly a quarter of traffic demand in high-traffic areas during peak hours, growing to nearly three quarters of demand unmet by 2035.
Insufficient spectrum will degrade network performance, causing widespread consumer and enterprise disruptions, from failed video streams to compromised emergency communications. By 2035, this will result in an annual lost opportunity of $300 billion, totaling $1.4 trillion of foregone potential growth over the next 10 years.
We expect such analysis to play a role in multiple proceedings, including the lower 3 band that pits wireless against the Defense Department (as discussed above) and the Upper C band which pits wireless against Starlink/SpaceX.

Pai Signals Split from Carr’s Approach to Merger Reviews. Former FCC Chair Ajit Pai will take over the reins at CTIA this week so we assume his public comments are not in tension with what his members would want him to say. So, we found his comments, made at a recent event in DC in which appeared to us to be critical of the FCC approach to mergers interesting.

He is quoted as questioning, among other things, the need for mergers to be reviewed by multiple agencies, saying “I think it would be helpful, especially to the American public, to have a single standard of review administered by a single agency.”
Further, he said the review “should be based on criteria that are open, published, transparent, understandable, and consistent with basic economics.”
While we know that Pai is personally close to Carr, he appears to be criticizing Carr for raising non-competition criteria, as well as criteria that is not published or transparent, such as Carr’s claiming that the public interest standard justifies examining a news outlet editing practices and a company’s DEI practices.
We note that two of CTIA’s members, VZ and TMUS, have deals pending at the FCC and that those members have not offered those criticisms.
It is not unusual for companies to use their trade associations to air policy positions that the companies themselves do not want their fingerprints on,[9] but it is a little unusual here, due to the personal and professional closeness of Pai and Carr.

[1] We do not want to debate the science (other than to point out a World Health Organization review of 63 studies it thought most authoritative found no link between cellphone use and cancer or other negative health effects) but simply want to reiterate describe how the Secretary of HHS views these issues and what sources he relies on. (While we may not want to debate the science—unlike the Secretary, we know what we don’t know--the wireless industry certainly does and will, as indicated by this listing of experts whose views are, uh, shall we say somewhat different than the Secretary of HHS.) We should also note that RFK’s comments were amplified on X but the X community notes pointed out there is “no evidence” that RFK is correct on that assertion but that “Excessive screen time, on the other hand, has been proven to be problematic.” The irony, it stings. But we doubt Musk will use his influence to argue to Trump that RFK’s anti-RF campaign is an inefficient waste of government resources.

[2] We don’t think it will come to this but we note that as AP reported in 2020, in Europe, “conspiracy theories linking new 5G mobile networks and the coronavirus pandemic are fueling arson attacks on cell towers.”

[3] RFK was the Founder, Chairman and Chief Legal Counsel for the organization.

[4] The press release announcing the lawsuit ends with “Please donate to the 5G lawsuit. Choose “Stop 5G” on the dropdown menu.” This suggests an agenda far larger than simply forcing the FCC to reconsider its earlier findings.

[5] There are many other lawsuits alleging the kinds of health effects that RFK has alleged. For example, for the past two decades, a group of lawsuits have been winding their way through the D.C. courts, in which plaintiffs allege that cell phones caused brain cancer. Last year, the court issued an order excluding the testimony of all six of the plaintiffs’ hand-picked experts. The court framed the test as follows: “Expert testimony may be excluded when the expert is unable to show a reliable basis for their theory.” None of the experts could satisfy this test. Also, interestingly, two of the plaintiff’s health experts had to testify remotely, because they had not been immunized against Covid and thus could not get into the country. No such lawsuit has ever succeeded, nor has the industry ever offered an out of court settlement. Our point in noting this is that these are RFK’s allies, and his stewardship of HHS, is likely to encourage such actions and perhaps even use federal resources to fund studies that support such claims, even if the consensus of the scientific community disagrees.

[6] For example, Robin Colwell serves as the telecommunications point person on the Trump National Economic Council and has broad experience on spectrum related issues. If RFK ramps up his comments, she could seek to use her position in the White House to put a brake on such efforts. But we can’t tell at this time whether such efforts would be likely to be effective.

[7] Just to be clear, those estimates were provided by an economic consulting firm hired by the group aligned with TMUS and VZ, not by the CBO. To our knowledge, no one in Congress is looking at the disputed spectrum and putting it into the bucket of potential auctions to pay for tax cuts.

[8] The letter noted that the councils were created five years ago in partnership with civil rights organizations to advise the company on workforce recruitment, procurement, community investment, and corporate governance but that the councils were scheduled.

[9] Though it does not take a Sherlock Holmes to decipher the genesis of perspective. To be fair to Pai, we should note that the views he expressed, at a forum hosted by a conservative think tank, are in line with advocacy done by conservatives for many years.