{"id":7043,"date":"2026-10-29T04:26:27","date_gmt":"2026-10-29T04:26:27","guid":{"rendered":"https:\/\/blogs.luc.edu\/compliance\/?p=7043"},"modified":"2026-10-29T04:26:27","modified_gmt":"2026-10-29T04:26:27","slug":"the-erosion-of-judicial-authority-through-agency-inaction-the-fccs-five-year-delay","status":"publish","type":"post","link":"https:\/\/blogs.luc.edu\/compliance\/?p=7043","title":{"rendered":"The Erosion of Judicial Authority Through Agency Inaction: The FCC\u2019s Five-Year Delay\u00a0\u00a0"},"content":{"rendered":"

Kaylie Humes\u00a0<\/span><\/i>\u00a0<\/span><\/p>\n

Associate Editor\u00a0<\/span><\/i>\u00a0<\/span><\/p>\n

Loyola University Chicago School of Law, JD 2028<\/span><\/i>\u00a0<\/span><\/p>\n

More than five years ago, a federal court <\/span>ordered<\/span><\/a> the Federal Communications Commission (FCC) to justify its decades <\/span>old limits<\/span><\/a> on radiofrequency radiation from cell phones and other wireless devices. Five years later, nothing has been done. In <\/span>Environmental Health Trust v. FCC<\/span><\/i><\/a>, the D.C. Circuit held that the FCC\u2019s decision to keep the 1996 limits unchanged was, in part, arbitrary and capricious. Rather than respond, the FCC let the remand sit until Children\u2019s Health Defense, Environmental Health Trust, and three individual petitioners<\/span> sought a writ of mandamus in May 2026; only then did the FCC ask for <\/span>public comment<\/span><\/a>. To prevent rendering its 2021 ruling meaningless by further delay, the D.C. Circuit must hold the FCC accountable by imposing a firm compliance deadline. Otherwise, the FCC\u2019s inaction risks setting a precedent that federal agencies may ignore court orders or delay compliance without consequence, undermining judicial authority and eliminating meaningful accountability.<\/span>\u00a0<\/span><\/p>\n

The journey of the FCC\u2019s 1996 safety standards\u00a0<\/span><\/b>\u00a0<\/span><\/p>\n

The FCC regulates human exposure to radiofrequency emissions from <\/span>wireless sources<\/span><\/a>, including cell phones, Wi-Fi routers, 5G antennas, and cell towers. Its exposure limits were adopted in 1996 and are designed primarily to prevent <\/span>thermal injury or tissue damage<\/span><\/a> caused by excessive heating. However, the effects of lower-level exposure remain <\/span>less clear<\/span><\/a>. The FCC acknowledges that further research is needed, yet it continues to rely on standards established nearly <\/span>three decades ago<\/span><\/a>. Since then, smartphones and <\/span>wireless infrastructure<\/span><\/a> have become increasingly widespread, raising questions about whether these technological advancements are appropriately addressed.<\/span>\u00a0<\/span><\/p>\n

The <\/span>Environmental Protection Agency<\/span><\/a> (EPA) once played a central role in reviewing the science behind radiofrequency exposure, serving as the authority in charge of establishing and reviewing wireless safety limits. However, in the 1980s it was defunded and stripped of its authority. In 1996, the authority was <\/span>passed to the FCC<\/span><\/a> and expanded by Congress to include the power to regulate all communications and related setting safety standards.\u00a0<\/span>\u00a0<\/span><\/p>\n

On August 13, 2021, the <\/span>D.C. Circuit held<\/span><\/a> that the FCC had failed to address evidence concerning non-cancer effects, children\u2019s vulnerability, environmental impacts, and impacts from long-term exposure to radiofrequency radiation. The <\/span>FCC<\/span><\/a> could not retain its existing rules without adequate justification. The agency was required to <\/span>offer a reasoned basis<\/span><\/a> for keeping its current procedures for testing phones and similar devices, to meaningfully consider evidence regarding radiofrequency exposure in children,\u00a0the effects of long-term exposure, the rapid growth in everyday wireless device use,\u00a0and to evaluate potential environmental harms. Notably, the court did not mandate new exposure limits; it required the FCC to provide a sound explanation for its conclusion.<\/span> Instead of a timely response to this court order, the FCC failed to act on the ruling for nearly five years. On May 18, 2026, Children\u2019s Health Defense, Environmental Health Trust, and three individuals <\/span>petitioned<\/span> the D.C. Circuit for a<\/span> writ of mandamus<\/span><\/a>, asking the court to compel the FCC to act. On August 26, 2026, the court <\/span>ordered <\/span><\/a>the FCC to respond to the petition.<\/span>\u00a0<\/span><\/p>\n

The consequences of the FCC\u2019s delay\u00a0<\/span><\/b>\u00a0<\/span><\/p>\n

Judicial review only works if agencies treat the court\u2019s judgment as binding. When a court finds an agency’s reasoning inadequate and sends the matter back, the agency must respond. Otherwise, the court\u2019s ruling becomes advisory. Here, the court allowed the FCC\u2019s 1996 limits to remain in place because it expected the agency to explain and justify them <\/span>promptly.<\/span><\/a> Instead, the FCC kept the benefit of the court\u2019s decision by leaving the regulation unaltered, while <\/span>failing to do what the court ordered.<\/span><\/a>\u00a0<\/span>\u00a0<\/span><\/p>\n

The FCC attempts to justify the delay by relying on the decision in <\/span>Telecommunications Research & Action Center v. FCC<\/span><\/i><\/a>,<\/span> which considered whether an agency has acted within a <\/span>rule of reason<\/span><\/a>. In simple terms, this asks whether the agency\u2019s pace makes sense under the circumstances. There is no fixed deadline after which delay becomes automatically unlawful. Instead, courts look at how <\/span>complex<\/span><\/a> the task is, how <\/span>significant<\/span><\/a> the outcome will be, and what <\/span>resources<\/span><\/a> the agency has to work with. The <\/span>FCC points<\/span><\/a> to the complexity of the science surrounding radiofrequency radiation, the lack of a firm deadline, and its other competing responsibilities in response to the court\u2019s remand. However, none of these considerations explains why the agency let five years pass after the court directed it to act, and the FCC\u2019s recent<\/span> public notice <\/span><\/a>does not solve the problem. Asking the public for comment is not the same as providing the explanation the court required. The FCC still has not committed to a date for its <\/span>final decision<\/span><\/a>, and only in a footnote does it state that it would need at least nine months if the court issues a writ of mandamus.\u00a0<\/span>\u00a0<\/span><\/p>\n

The risks of an unacceptable precedent<\/span><\/b>\u00a0<\/span><\/p>\n

The court should hold the FCC to its own estimate, requiring it\u00a0to provide the ordered reasoning within nine months of the comment deadline. Since the FCC proposed the timeline itself, it\u00a0cannot argue under <\/span>Telecommunications Research & Action Center v. FCC<\/span><\/i><\/a> that<\/span> the deadline is arbitrary or unworkable.\u00a0<\/span>\u00a0<\/span><\/p>\n

Nevertheless, this case is not about whether the 1996 limits are appropriate; it’s about whether an agency may ignore a court order for five years and escape accountability by acting only when compelled. Accepting the FCC\u2019s excuses would create a dangerous rule. Nearly every case sent back to an agency involves complicated issues; court orders do not always come with a strict deadline, and agencies are always managing other responsibilities. If these reasons are enough to excuse five years of inaction, any agency could invoke them to delay compliance with a court order indefinitely.<\/span>\u00a0<\/span><\/p>\n

Ultimately, the question before the court is not whether the FCC\u2019s radiofrequency limits are safe, but whether an agency can disregard a judicial mandate for five years without consequence. If the court accepts the FCC\u2019s justifications, its remand orders lose a lot of force. To preserve its authority, the court should hold the FCC accountable and require it to provide the explanation that was ordered in 2021. <\/span>\u00a0<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

More than five years ago, a federal court ordered the Federal Communications Commission (FCC) to justify its decades old limits on radiofrequency radiation from cell phones and other wireless devices. Five years later, nothing has been done. In Environmental Health Trust v. FCC, the D.C. Circuit held that the FCC\u2019s decision to keep the 1996 limits unchanged was, in part, arbitrary and capricious. Rather than respond, the FCC let the remand sit until Children\u2019s Health Defense, Environmental Health Trust, and three individual petitioners sought a writ of mandamus in May 2026; only then did the FCC ask for public comment. To prevent rendering its 2021 ruling meaningless by further delay, the D.C. Circuit must hold the FCC accountable by imposing a firm compliance deadline. Otherwise, the FCC\u2019s inaction risks setting a precedent that federal agencies may ignore court orders or delay compliance without consequence, undermining judicial authority and eliminating meaningful accountability.\u00a0<\/p>\n","protected":false},"author":199,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[50],"tags":[807,2472],"class_list":["post-7043","post","type-post","status-publish","format-standard","hentry","category-technology","tag-fcc","tag-judicial-authority"],"_links":{"self":[{"href":"https:\/\/blogs.luc.edu\/compliance\/index.php?rest_route=\/wp\/v2\/posts\/7043","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.luc.edu\/compliance\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.luc.edu\/compliance\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.luc.edu\/compliance\/index.php?rest_route=\/wp\/v2\/users\/199"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.luc.edu\/compliance\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=7043"}],"version-history":[{"count":2,"href":"https:\/\/blogs.luc.edu\/compliance\/index.php?rest_route=\/wp\/v2\/posts\/7043\/revisions"}],"predecessor-version":[{"id":7045,"href":"https:\/\/blogs.luc.edu\/compliance\/index.php?rest_route=\/wp\/v2\/posts\/7043\/revisions\/7045"}],"wp:attachment":[{"href":"https:\/\/blogs.luc.edu\/compliance\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=7043"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.luc.edu\/compliance\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=7043"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.luc.edu\/compliance\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=7043"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}