Pillsbury Winthrop Shaw Pittman LLP 1200 Seventeenth Street NW | - - PDF document

Pillsbury Winthrop Shaw Pittman LLP 1200 Seventeenth Street NW | Washington, DC 20036-3006 | tel 202.663.8000 | fax 202.663.8007

Glenn S. Richards tel: 202.663.8215 glenn.richards@pillsburylaw.com

www.pillsburylaw.com 4849-4774-5986.v1

July 13, 2020 VIA ELECTRONIC FILING (ECFS) Marlene H. Dortch, Secretary Federal Communications Commission 445 12th Street, SW Washington, DC 20554 Re: Ex Parte Presentation ET Docket No. 19-226 Dear Ms. Dortch: On July 9, 2020, representatives of Sensormatic Electronics, LLC (“Sensormatic”) met by phone with staff of the FCC’s Office of Engineering and Technology to discuss Sensormatic’s position in the above-referenced proceeding. A complete list of attendees is attached as Exhibit 1. During the meeting, Sensormatic, consistent with its comments in this proceeding, provided background on the company and its electronic anti-theft technology; discussed why new RF exposure limits for frequencies below 100 kHz are unnecessary; recommended that if limits are adopted, the FCC should adopt IEEE Std C95.-2019 rather than the more stringent ICNIRP limits, which would have a detrimental effect on Sensormatic and retailers that require larger width openings; described how this same issue was addressed in Canada; described its commitment to medical implant patient safety; and recommended that if limits are adopted the FCC should grandfather installed devices and existing inventory, and not make the new rules effective for three years. Attached as Exhibit 2 is the handout provided for the meeting. Please feel free to contact the undersigned if you have any questions. Very truly yours, Glenn S. Richards Counsel for Sensormatic Attachment cc: See Exhibit 1 (via email)

www.pillsburylaw.com 4849-4774-5986.v1

Exhibit 1 Attendees FCC Office of Engineering and Technology Martin Doczkat Ira Keltz Kevin Graf Steven Bartholomew Chrys Chrysanthou For Sensormatic Electronics, LLC Ian Brooker Jose Hernandez Lee Finney Craig Sharman Olin Giles, Consultant to Sensormatic Rob Kavet, Consultant to Sensormatic Glenn Richards, Pillsbury Winthrop Shaw Pittman, LLP Kenneth Taber, Pillsbury Winthrop Shaw Pittman, LLP David Redl, Salt Point Strategies

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Presentation to the Federal Communications Commission ET Docket 19-226 (NPRM) 7/9/20

Sensormatic

2

Our Purpose for this Ex-Parte Meeting

1) We recommend against extending the RF exposure limits below 100 kHz. This extension would not advance public health. 2) If regulation is deemed necessary, we recommend IEEE Std C95.1-2019. 3) The proposed ICNIRP 2010 Guidelines have serious flaws. 4) Canada’s Safety Code 6 addresses at least some of ICNIRP flaws. 5) Impact on “brick and mortar” retailers from any new regulation could be severe. 6) Grandfathering is essential.

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EAS Products Protect the World’s Leading Retailers

Source-Tagging eco-system. Thousands of manufacturers incorporate the tags in their products.

EAS Deters Theft … Which costs U.S. Consumers $50.6 Billion/Year Average Cost per Family ….$506/Year

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EAS Systems - How Sensormatic Ultramax Works

The transmitter signal is a series of 58 kHz pulses 1.6 ms @ 10% duty cycle. Acousto-Magnetic Tag resonates like a tuning fork, rings down after each pulse. Typical time of exposure in the system: a few seconds. The retailer’s operation determines the system width and thus the required EMF field level. “Big Box” stores often require nine-foot openings for large items, like pallets of lumber. Department stores also need wide entrance protection.

Over One Million Systems Installed Globally ……Billions and Billions of Safe Passages

Resonant Retransmission EMF Transmission Distance, d

Hrec ∝ 1/d3 Htrans

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EAS Systems - Part of the Environment For Decades

EAS systems are everywhere…

A well known part of the environment for decades. Comply with the FCC’s intentional radiator rules, 47 CFR 15.209. Comply with the IEEE Std C95.1-2019 limits.

EAS EMF levels unchanged for decades (with no plans to increase levels). Zero reports of Peripheral Nerve Stimulation (PNS) from the public passing through the systems. Zero reports of exposure injury to the public in the scientific literature.

Regulations should solve problems, not create them

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Background on FCC ET Docket 19-226

In 2013, the FCC initiated a proceeding to consider establishing human exposure limits on transmitters operating at frequencies below 100 kHz. The FCC asked whether it should adopt the then-available ICNIRP or IEEE limits. Most commenters didn’t address the adoption of either standard with respect to the low frequency range. Sensormatic supported IEEE Std C95.1-2005. Sensormatic filed comments, reply comments, plus two ex-parte meetings.

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Background on FCC ET Docket 19-226

Now: Fast Forward Seven Years

ET Docket 19-226 NPRM proposes extending the frequency range below 100 kHz and adopting the ICNIRP 2010 Basic Restrictions (BRs) for internal electric field (Ei), rather than the more recent IEEE Std C95.1-2019. Adoption of the ICNIRP BRs would be detrimental for Sensormatic, the rest of the low frequency EAS Industry, and the extensive “Brick and Mortar” retailer customer base.

FCC’s NPRM Selecting ICNIRP 2010 Surprised Sensormatic

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Sensormatic’s Recommendation…As One of the Largest ≤100 kHz Users

Do not extend the regulated frequency range below 100 kHz. No advancement of public health. PNS is the only known bioeffect in this low frequency range. PNS is a threshold effect, transient and completely reversible, With no long-term residual effects. The FCC has never regulated, or imposed limits, because of the PNS bioeffect. OET’s own RF safety FAQ only recognizes tissue heating above 100 kHz as an adverse health concern, and current rules protect against it above 300 kHz.

ICNIRP 2010’s Many Flaws Should Preclude Selection

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IEEE vs ICNIRP …..Essentially the Same at High Frequencies …..Very Different at Low Frequencies

58 Acousto Magnetic

900 A/m

163 A/m 21 A/m

ICNIRP BRs : A Significant Impact on System Exit Width ICNIRP RLs : Far More Impact

ICNIRP RLs are 8X below IEEE ERL levels: yields >50% reduction in EAS system exit width. ICNIRP BRs are 1.75X below IEEE DRL levels: yields ~20% reduction in system exit width. ICNIRP lacks alignment between its BRs and RLs

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EAS Products vs IEEE Std C95.1-2019 and ICNIRP 2010

No products meet the ICNIRP Reference Levels Several Meet the ICNIRP BRs… But Wider Exit Systems suffer a 20% width reduction

All Products Comply with IEEE Std C95.1-2019 ERLs (MPEs)

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ICNIRP 2010 Flaws

Not an open, consensus-based, process.

A small group: 14 Commission members from government & academia….. by invitation only. Dominated by Europe: 8 European members (≈60%), only one from the U.S., an optical engineer.

ICNIRP 2010 was intended as a “fix” for ICNIRP 1998 below 100 kHz.

Driven by European politics: emitters could not meet ICNIRP1998 (32X below IEEE), a major issue. ICNIRP 2010 needed further fixes before could be adopted in the EU “Worker Exposure Directive”. ICNIRP 2010 RLs 8X below IEEE Reference Levels…..still a problem and unrealistic . No relaxation for limbs: a serious omission. Manufacturers forced to assess compliance to ICNIRP 2010 Basic Restrictions using costly FDTD modelling.

Arbitrary dosimetry assumptions lead to unjustified safety factors.

Self-Critical Article by ICNIRP in Health Physics (Vol 118, May 2020)

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Technical Concerns w/ICNIRP vs ICES/IEEE

Factor ICNIRP IEEE 1) Threshold parameter Applies peak in situ PNS threshold as RMS. Consistent in application of peak and RMS quantities. 2) Criterion response Perception presumed. Pain explicitly stated. 3) Pain multiplier Does not compare pain & perception medians. Assigns multiplier of 1.45 based on literature. 4) Consistency of sensory criteria Perception(?) for PNS, but pain for contact current. Consistent pain criteria. 5) Safety factors Extra ad hoc reduction factor due to “dosimetric uncertainty.” Safety factors based on studies of electrostimulation. 6) Correspondence of exposure & dose limits RL & BR do not dosimetrically correspond. Exposure (ERL) & dose limits (DRL) correspond. 7) Limbs No exceptions. Relaxed exposure limits.

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“Dosimetric Uncertainty”

0.1 0.2 0.3 0.4 0.5

• 5 -4 -3 -2 -1 0

1 2 3 4 5 % Responding (PNS) Loge BThresh σ

■ Suggested in ICNIRP, 2010 as an unbounded uncertainty. ■ Led to overly conservative RL >3 kHz. ■ In fact, dosimetric uncertainty is bounded by the variability (σ ) of the external field at sensory threshold (BThresh). ■ This variability can guide the values for safety factors, but need data.

Exposure Dose Response Fortunately, we have empirical PNS threshold data from human subjects.

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Human Subjects Study (Nyenhuis et al., 2001)

84 adult volunteers exposed to pulsed fields across a range of 9 pulse widths. Responses: perception, discomfort, and pain. A follow-up dosimetry study (So et al., 2004) analyzed sensory thresholds, permitting an estimate of the coupling coefficient for PNS. A second follow-up (Bailey & Nyenhuis, 2005) computed the distribution of the low-frequency sinusoidal perception threshold, i.e, σ . These results then extrapolated by R. Kavet to VLF/LF. Median PNS threshold at VLF/LF = 0.96 mT, with 99.9% range of 0.45-to-2.06 mT.

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Perception Probability Based on Human Subjects

• 7
• 6
• 5
• 4
• 3
• 2
• 1

1 2 3 0.1 1 Probability of Perception Magnetic Field (mT RMS)

0.24 0.47 0.40 0.35 0.32 0.29 0.26 0.56 0.71 0.82 0.96 1.12 1.29 1.65

Median

10-10 10-8 10-6 10-4 0.01 10-3 0.1 0.25 0.5 0.75 0.9 0.99

• 7
• 6
• 5
• 4
• 3
• 2
• 1

1 2 3 0.1 1 Probability of Perception Magnetic Field (mT RMS)

0.24 0.47 0.40 0.35 0.32 0.29 0.26 0.56 0.71 0.82 0.96 1.12 1.29 1.65

6σ (1 in a billion) Median

10-10 10-8 10-6 10-4 0.01 10-3 0.1 0.25 0.5 0.75 0.9 0.99

• 7
• 6
• 5
• 4
• 3
• 2
• 1

1 2 3 0.1 1 Probability of Perception Magnetic Field (mT RMS)

0.24 0.47 0.40 0.35 0.32 0.29 0.26 0.56 0.71 0.82 0.96 1.12 1.29 1.65 0.205

IEEE

Median 6σ (1 in a billion)

10-10 10-8 10-6 10-4 0.01 10-3 0.1 0.25 0.5 0.75 0.9 0.99

IEEE ERL better than 6σ

(<1 in 10 billion)

Very Conservative

<10-52 ICNIRP 0.027 mT

ICNIRP RL Beyond 15σ ; Beyond Being Conservative

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ICNIRP and IEEE - Summary

1. Technical concerns with ICNIRP, 2010 including (among others):

Consistency (perception or pain) “Dosimetric uncertainty”;

2. “Dosimetric uncertainty” constrained by ln-variance of external B-field at threshold; 3. Human subjects study provides estimate

• f this variance;

4. Then probability plot shows: IEEE ERL very conservative; ICNIRP RL beyond conservative.

σ 2 [Ln(EThresh)] σ 2 [Ln(CPN*)]

* Coupling Coefficient for Peripheral Nerve

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Canada’s Safety Code 6: Partially Adopted from ICNIRP

Safety Code 6 (2015), SC6, specifies EMF human exposure limits above 3 kHz.

The ICNIRP 2010 RLs are not used. Uses the ICNIRP BRs, plus modified RLs to align better with the ICNIRP BRs.

Determined that the ICNIRP RLs have excessive safety factors. SC6 allows low frequency Reference Levels of:

90 A/m for uncontrolled environments and180 A/m for controlled environments. ~4.2X the ICNIRP 2010 general public RLs, ∼2.3X the ICNIRP occupational RLs.

Relaxed RLs for limb exposures. EAS system exit width would be degraded

Degradation of ≈20% with Canada’s Safety Code 6 BRs, Essentially the same as the degradation with ICNIRP 2010 BRs, Even greater degradation of ≈50% if the ICNIRP 2010 RLs are used.

Health Canada Recognized the Flaws in ICNIRP 2010 ...and Partially Addressed the Issues

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IEEE Std C95.1-2019: latest safety standard for human exposure

Developed by IEEE International Committee on Electromagnetic Safety (ICES).

International broad-based membership: 220 professionals from 26 countries. Over half of its members from the USA. IEEE Std C95.1-2019 is the seventh revision in the series, dating back to 1966, …….Previously cited by both NATO and FCC. Open voluntary consensus standard, grounded in scientific principles.

IEEE evaluated the latest science prior to initiating this edition.

Literature review included the latest science and papers. BR and RL limits are aligned: Which means cost effective compliance testing below 100 kHz. Basic Restriction and Reference Level gaps with ICNIRP below 100 kHz remain.

Using IEEE consistent with:

• National Technology Transfer and Advancement Act of 1995.
• OMB Circular No. A-119 re: Federal use of voluntary consensus standard.

The FCC Should Adopt the Recently Issued IEEE C95.1-2019

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EAS Range/System Width for IEEE vs Canada vs ICNIRP

The ICNIRP 2010 Basic Restrictions would lie near or just above the Canada results.

This is because the Canada SC6 Reference Levels are better aligned with the Basic Restrictions.

MPE/Ref Level Field ~Range IEEE

100% 100%

Canada

55% 80%

ICNIRP 2010

13% 50%

ICNIRP 1998

3% 25%

Comparison of the effective range of a system using different reference levels.

The IEEE levels are used as the 100% range and field level reference point @ 2.7 m (9 ft). For each curve the different reference levels are set at a 20 cm distance.

Difference in Range for the same Field Difference in Field for the same Distance

2.7

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Summary Conclusions

The FCC should not extend the RF exposure limits below 100 kHz. This extension would not advance public health. If regulation is deemed necessary, Sensormatic recommends IEEE Std C95.1-2019. If the FCC adopts the ICNIRP 2010 Basic Restrictions, or Canada’s SC6, it will have a material impact on “Brick and Mortar” Retailers. For any newly adopted regulation, FCC must:

• 1. Grandfather existing installations and inventory.
• 2. Allow at least three years from the effective date of the Order,

for manufacturers to implement the new standards.