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Data Quality Act Complaint by Cynthia Franklin

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Released: December 21, 2012

Federal Communications Commission

FCC 12-165

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
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)

Data Quality Act Complaint by Cynthia Franklin
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)

ORDER

Adopted: December 20, 2012

Released: December 21, 2012
By the Commission:
1. By this Order, we affirm the Office of Engineering and Technology (“OET”) denial1 of a
Data Quality Act (“DQA”) complaint filed by Cynthia Franklin,2 and, for the reasons stated below, deny
Ms. Franklin’s application for review of the OET action.3
2. Ms. Franklin submitted complaints regarding certain consumer documents that inform the
public regarding the nature of FCC radiofrequency (“RF”) exposure rules and procedures and how they
relate to cell phones. She particularly complained in each instance about the language used in the
discussions of testing for exposure to RF radiation when the cell phones are held in positions other than
against the head, contending that a complete and detailed description of such testing is necessary to
prevent physical harm to consumers. OET denied each complaint and declined to modify the subject
documents. Ms. Franklin seeks review of the denial of three of those complaints. In reviewing the
subject documents and Ms. Franklin’s complaints, we observe, as did OET, that the documents at issue
are fact sheets intended to disseminate information to average consumers who may not have the particular
technical expertise or knowledge regarding electrical engineering, RF propagation or science, RF
emissions characteristics, research practices, or how the FCC regulates portable devices to interpret more
clinical or detailed scientific information. The purpose of these documents is to explain in easy-to-
understand terms the regulatory rules and policies adopted in response to notice–and-comment
rulemakings.4 While including detailed discussions of technical or procedural information in this forum
might provide a more precise articulation of the subtleties of the information presented, such an approach
would reduce the utility of the information to the intended users. Moreover, while Ms. Franklin focuses
on certain words and phrases that she contends are erroneous or misleading, we find that the full
statements in which these words and phrases appear in context are generally accurate and not misleading,

1
Letter from Julius Knapp, Chief, Office of Engineering and Technology, Federal Communications Commission
to Cynthia Franklin, Environmental Health Trust (October 31, 2011) (Denial).
2
FCC Data Quality Act Challenge, Complaint filed by Cynthia Franklin, Environmental Health Trust (July 12,
2011) (Complaint).
3
Appeal of FCC Determination Letter of 31 October 2011 [sic], (rec. Nov. 28, 2011) (Application for Review).
4
In its 1996 Report and Order and its 1997 Second Memorandum Opinion and Order in ET Docket 93-62, the
Commission, among other matters, established rules and guidelines for evaluating the environmental effects of
radiofrequency radiation. Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation, Report
and Order
, ET Docket 93-62, 11 FCC Rcd 15123 (1996); Procedures for Reviewing Requests for Relief From State
and Local Regulations Pursuant to Section 332(C)(7)(B)(V) of the Communications Act of 1934, Second
Memorandum Opinion and Order and Notice of Proposed Rule Making
, WT Docket 97-192, 12 FCC Rcd 13494
(1997).

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FCC 12-165

and that the purported errors do not “have a clear and substantial impact on … important private sector
decisions.”5 Accordingly, under the FCC Information Quality Guidelines, the purportedly erroneous
information would not qualify as “influential, scientific, financial, or statistical information” whose
dissemination deviates from the quality standards established by the Commission under the DQA.6
3. For these and the other reasons discussed below, we deny the application for review and
affirm OET's action.

I.

BACKGROUND

4. The Data Quality Act allows interested parties to bring concerns regarding the quality7 of
information disseminated to the public to the attention of the respective federal agencies disseminating
such information. The OMB Guidelines provide guidance to agencies for ensuring and maximizing the
quality, objectivity, utility, and integrity of information disseminated. In the guidelines, OMB defines
“quality” as the encompassing term, of which “utility,” “objectivity,” and “integrity” are the constituents.8
“Utility” refers to the usefulness of the information to the intended users. “Objectivity” focuses on
whether the disseminated information is being presented in an accurate, clear, complete, and unbiased
manner, and as a matter of substance, is accurate, reliable, and unbiased. “Integrity” refers to security—
the protection of information from unauthorized access or revision, to ensure that the information is not
compromised through corruption or falsification. OMB modeled the definitions of “information,”
“government information,” “information dissemination product,” and “dissemination” on the
longstanding definitions of those terms in OMB Circular A-130, but tailored them to fit into the context
of these guidelines.
5. The FCC Information Quality Guidelines define the policy and procedures for reviewing and
substantiating the quality of information before it is disseminated to the public, as well as administrative
mechanisms allowing persons to seek and obtain, where appropriate, correction of information
disseminated that does not comply with the Data Quality Act.9 The FCC Guidelines substantially follow
the provisions of the OMB Guidelines, interpreting many key statutory terms, such as “information,”
“disseminate,” “quality,” “objectivity,” utility,” and “integrity.” As directed in the OMB Guidelines, the
FCC Guidelines establish a complaint process by which interested parties may file initial complaints with
the Bureau or Office wherein the information dissemination product originates.10 Under the FCC
Guidelines, the Bureau or Office handling the initial complaint will respond in a manner appropriate to
the nature and extent of the complaint. Persons who do not agree with the initial decision are afforded the
opportunity to seek administrative review of that decision by directing an Application for Review to the
Commission.
6. On July 12, 2011, Cynthia Franklin filed the underlying DQA complaint alleging various

5 See Implementation of Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of
Information Pursuant to Section 515 of Public Law No. 105-554
, Appendix A, 17 FCC Rcd 19890, 19895 (2002),
available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-02-277A1.pdf. (FCC Guidelines).
6 Id.
7 Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information
Disseminated by Federal Agencies
, 66 FR 49718 (Sept. 28, 2001) (interim final guidelines), and 67 FR 369 (Jan. 3,
2002) (final guidelines), corrected, 67 FR 5365 (Feb. 5, 2002), reprinted correcting errors, 67 FR 8452 , 8453-54,
8459-60 (Feb. 22, 2002) (collectively referred to as “OMB Guidelines”).
8 See OMB Guidelines, 67 FR at 8453-54, 8459-60.
9 See FCC Guidelines, supra.
10 See OMB Guidelines, 67 FR at 8458-59, see also FCC Guidelines, 17 FCC Rcd at 19898.
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FCC 12-165

violations of the DQA in four consumer documents disseminated by the FCC that inform the public
regarding the nature of radiofrequency (RF) exposure from wireless devices.11 Ms. Franklin’s complaints
were all related to the words used in explanations of how cell phones are tested for use when not held
against the head for talking (i.e., in the “body-worn” position). OET reviewed and denied the complaints
in a letter to Ms. Franklin on October 31, 2011.12 OET explained that the four fact sheets disseminated
information to consumers, who have no particular technical expertise or knowledge regarding RF
exposure or how the FCC regulates portable devices. OET explained that including highly detailed
discussions of technical or procedural information, such as specifics related to procedures offered as
options to industry for evaluation of equipment for compliance with the RF exposure rules or the
scientific details of the science underlying these rules, would reduce the utility of the information to the
intended users. Moreover, the documents explain in easy-to-understand terms the rules and policies
adopted in response to notice-and-comment rulemakings.
7. On November 28, 2011, Ms. Franklin filed the instant application for review of the OET
action with respect to three arguments of her complaint. Generally, she reasserts claims directed at three
of the FCC consumer documents arguing that the documents should be corrected to state that cell phones
are not tested for RF exposure during use in direct contact with the body, and therefore they should not be
used in such a manner.13
8. Each of the complaints that Ms. Franklin continues to press in her application for review have
to do with representations regarding testing for phones when used in a body-worn position. In general
support of her application for review, Ms. Franklin contends that cell phone manufacturers are “well
aware” that common consumer “usage” today involves the placement of the cell phone directly against
the body and that they explicitly market cell phones for “use” against the body, and that they
acknowledge in the “warnings” in their user manuals that wearing phones on the body might present a
risk of serious harm. She concludes that, given these facts, it is essential that the information
disseminated by the FCC accurately say that cell phones are not tested for RF exposure when used
“directly” against the body and hence should not be so used. She asserts that such factual accuracy is
required by the DQA. Ms. Franklin also asserts that independent scientific study proves that cell phone
use “against the body” can exceed the allowed Specific Absorption Rate (SAR) exposure limit by two to
seven times, although she avers that such study is not necessary to support her application for review,
“given the regulatory framework.”
9. In conjunction with the determinations below, we note that the U.S. Government
Accountability Office has recently issued a report entitled Exposure and Testing Requirement for Mobile
Phones Should Be Reassessed
(“Report”).14 In response to that Report, the Commission’s Office of
Engineering and Technology noted that “…we believe our current standards are appropriate and protect
the public against the possible harmful effects of RF exposure. However, we appreciate that it has been
many years since the Commission conducted a formal review of the current standard.”15 It goes on to
observe that the Commission is considering opening a proceeding in the near future to consider, among
other things, the issues and recommendations in the Report.16 If the Commission was to determine, after

11 FCC Data Quality Act Challenge, Complaint filed by Cynthia Franklin (July 12, 2011) (Complaint).
12 Letter from Julius Knapp, Chief, Office of Engineering and Technology, Federal Communications Commission
to Cynthia Franklin, Environmental Health Trust (October 31, 2011) (Denial).
13 Appeal of FCC Determination Letter of 31 October 2011 [sic], (rec. Nov. 28, 2011) (Application for Review).
14 GAO-12-771, released August 7, 2012. (Available at http://gao.gov/products/GAO-12-771.)
15 Letter from Julius Knapp to Mr. Mark Goldstein, Director, Physical Infrastructure Issues, U.S. Government
Accountability Office, at 1, included as Appendix III of the Report.
16 Id., at 1, 2.
3

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FCC 12-165

thorough review of the information and arguments provided in the proceeding, that changes in its
guidelines or procedures are warranted, it would make appropriate revisions to the related information
provided to the public. Ms. Franklin is welcome, of course, to address any substantive concerns with our
rules in the rulemaking proceeding. In the interim, the information provided on our website is
appropriate.

I.

DECISION

Complaint 1: “The FCC guide Specific Absorption Rate (SAR) for Cell Phones: What it Means for

You

inaccurately tells consumers that cell phones are tested against the body and next to the
body.”

10. We agree with OET that the text that is the subject of this complaint is consistent with the
requirements of the DQA and FCC Guidelines, and we affirm OET’s denial of the Complaint with respect
to this information dissemination product.
11. In summary, Ms. Franklin asserts that the FCC guide at issue here does not accurately
describe how cell phones are tested for possible RF exposure, and so could encourage cell phone users
to use their phones too close to their bodies in an unsafe manner. Ms. Franklin first quotes from a
passage in the section entitled “SAR Testing,” which states that cell phones are tested “against the
dummy head and body” and “next to the head and body.” Ms. Franklin then contends that these
statements violate the DQA because they are not objective and not useful, in that they do not explain
with precision that cell phones are positioned 1.5 to 2.5 cm from the body when they are tested for the
body-worn position, and thus it is “plainly inaccurate for ‘data’ to assert that they are tested against or
next to the body.” She continues, asserting that the public will be led to believe that phones are tested
for use in pockets, brassieres and other body-worn configurations lacking a separation distance, and
thus people will be encouraged to use the phones without a separation distance, to their physical
detriment. Ms. Franklin next quotes from a passage in the section entitled “What SAR Shows,” which
states that “FCC approval means that the device will never exceed the maximum levels of consumer of
RF exposure permitted by federal guidelines,” contending that this statement, too, is neither objective
nor useful and will consequently encourage consumers to use cell phones in a physically harmful
manner by carrying them in pockets or brassieres.
12. Ms. Franklin’s concerns, however, misconstrue the purpose of the document at issue, which
is not to provide advice on how best to hold and use a cell phone, or to allow consumers to critique the
sufficiency of testing methods, but rather to explain why a single reported maximum SAR value is an
insufficient basis for comparing the likely RF exposure from individual cell phone models. Indeed, the
guide emphasizes that SAR testing “does not indicate the amount of RF exposure consumers experience
during normal use of the device.” And while Ms. Franklin asserts that the guide will encourage
consumers to carry cell phones against their bodies, the only statement in the guide about how to carry a
phone is quite to the contrary, noting that “the most effective means to reduce [RF] exposure are to hold
the cell phone away from the head or body and to use a speakerphone or hands-free
accessory.” Accordingly, we disagree that the Guide when read in its entirety would be likely to promote
unsafe cell phone use.
13. In sum, we agree with OET’s assessment that Ms. Franklin’s complaint regarding this
website does not warrant action. The purpose of the guide was not to explain the testing process with
sufficient precision to allow each reader to evaluate whether testing is adequate, nor was it to explain how
to use, or not use, a cell phone. Moreover, as observed by OET with respect to What SAR Shows: What it
means to you,
the level of detail Ms. Franklin sought is inconsistent with the intent of issuing a
straightforward, consumer-friendly document simply explaining the significance of reported SAR values.
4

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FCC 12-165

Complaint 2: “The FCC Office of Engineering and Technology’s consumer website Radio

Frequency Safety

inaccurately states that cell phones are required to meet safety
requirements against the body, and therefore are compliant with the safety limit when used
against the body.”

14. We agree with OET that OET’s Radio Frequency Safety website materials are consistent with
the requirements of the DQA and FCC Guidelines, and we accordingly affirm OET’s denial of the
Complaint with respect to this information dissemination product.
15. In this complaint, Ms. Franklin refers to the answer to one of the FAQs (frequently asked
questions) on the OET website devoted to RF safety. We first note that under the FCC Information
Quality Guidelines derived from the DQA, FAQs are classified as “non-scientific/non-statistical general,
procedural or organizational information,”17 and that such information is excluded from the category of
information whose dissemination is subject to the DQA quality guidelines.18 While Ms. Franklin objects
that this exclusion in the FCC’s Information Quality Guidelines is inconsistent with the DQA and OMB’s
definition of information covered by the DQA, OMB specifically gave agencies latitude in implementing
the DQA’s provisions and OMB’s guidelines.
16. While this FAQ accordingly is not contestable, we observe that even were we to consider this
complaint, it would fail. Ms. Franklin here refers to the answer to the FAQ regarding hands-free
earpieces and accessories that claim to shield the head from RF radiation. She specifically objects to the
passage referring to ear piece use: “Even so, mobile phones marketed in the U.S. are required to meet
safety limit requirements regardless of whether they are used against the head or against the body. So,
either configuration should result in compliance with the safety limit.” Again, she contends that cell
phones are tested for body-worn compliance when positioned 1.5 to 2.5 cm from the body. Ms. Franklin
further asserts that there is no documentation to support the assertion that phones marketed in the U.S. are
tested when used “against the body,” or that use against the body “should result in compliance with the
safety limit” – apparently taking “against the body” to mean directly in contact with the skin. She
concludes that this violates the “utility” requirement of the DQA by encouraging consumers to use cell
phones contrary to the way they are tested, to the warnings in user’s manuals, and to our regulations
regarding SAR limits.
17. As is the case with her first complaint, in full context we do not expect that a reader of the
FAQ would take the answer as an instruction or guidance on how a phone should be used without a
headset. Rather, the passage is explaining the effects of using a headset when talking on the phone, not
dispensing advice on exactly how close to the body a phone should be to duplicate the “use against the
body” description of the SARS testing protocols. Thus, the thrust of the answer is that while RF is
absorbed into the body while using a headset, such absorption does not occur at the location of the head
where the higher SARS readings have been found to be well within safety limits. Moreover, the phrase
in question – “use against the body” – is not referring to direct contact between a phone in use and the
skin; the earlier part of the text makes this clear, stating: “[I]f the phone is mounted against the waist or
other part of the body during use, then that part of the body will absorb RF energy.” (emphasis added).
As observed by OET, this indicates that some form of apparatus is used to hold the device. Therefore, we
do not expect that the text would commonly be read to suggest that all wireless devices will be compliant
with the SAR standards if used without any appropriate apparatus to mount the device against the body.
Moreover, the sentence does not in any way suggest that it supersedes any information on appropriate use
of the devices provided in the instructions that come with the device. Ms. Franklin’s attempt to portray
this basic FAQ as influential and actionable data demonstrates the propriety of the FCC’s determination

17 FCC Guidelines, 17 FCC Rcd at 19896.
18 Id. at 19895.
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to exclude FAQs from consideration under its Information Quality Guidelines, as they do not purport to
be “influential scientific, financial or statistical information” whose dissemination would have a “clear
and substantial impact on important public policies or important private sector decisions.”19

Complaint 3: “The FCC Guide Wireless Devices and Health Concerns

used to contain, and
misleadingly dropped, a warning that consumers not use cell phones on belts or in pockets.”
18. We agree with OET that the material referenced in the complaint in Wireless Devices and
Health Concerns is consistent with the requirements of the DQA and FCC Guidelines, and we affirm
OET’s denial of the Complaint with respect to this information dissemination product.
19. In this complaint, Ms. Franklin refers to a paragraph titled “Some Measures to Reduce Your
RF Exposure” in a section of this guide called “What You Can Do.” She complains that the advice “Keep
wireless devices away from your body when they are on, mainly by not attaching them to belts or
carrying them in pockets” was deleted from the prior version of the paragraph and no longer appears. She
contends that deleting the sentence violates the DQA’s objectivity requirement for unbiased
completeness. She contends that the Commission must explicitly advise consumers not to use cell phones
on belt clips or in pockets.
20. As OET correctly pointed out, the FCC does not endorse and has never endorsed the specific
recommendations for reducing exposure offered in this section because they are beyond those necessary
to achieve compliance with our exposure limits and thus are not known to increase safety. The subject
information is included only to provide information for those consumers who wish to take additional
precautionary steps to further reduce exposure, and it assumes appropriate cell phone use consistent with
manufacturers’ information and instructions. As OET further observed, the specific language at issue was
replaced by more appropriate language that addresses more universally the relation between the
absorption of RF energy and separation from the source: “…wireless devices only emit RF energy when
you are using them, and the closer the device is to you, the more energy you will absorb.”
21. Accordingly, IT IS ORDERED that, pursuant to section 515(a) of the Treasury and
Government Appropriations Act for Fiscal Year 2001, Pub. L. No. 106-554, § 515, 114 Stat. 2763,
2763A-153 (2000), and section 4(i), of the Communications Act of 1934, as amended, 47 U.S.C. §§
154(i), 405(a), and the FCC Information Quality Guidelines, this APPLICATION FOR REVIEW IS
DENIED.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary

19 See FCC Guidelines, 17 FCC Rcd at 19895.
6

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