Legal Matters/Resources

Environmental Health Trust (EHT) and the Children’s Defense Fund filed a Landmark case lawsuit against the FCC, in the DC Circuit Court on July 29, 2020. The appeal is aimed at getting the FCC to reconsider, revise, and update its 24-year old exposure limits for radio-frequency radiation (RFR) from cellphones, cell towers, Wi-FI networks, smart meters, and other wireless communication devices and facilities. 

BACKGROUND

The FCC opened an Inquiry into the adequacy of its exposure limits in 2013 after the Government Accountability Office issued a report in 2012 stating that the limits may not reflect current science and need to be reviewed. In response, hundreds of scientists and medical professionals submitted a wealth of peer-reviewed studies showing the consensus of the scientific community is that RFR is deeply harmful to people and the environment and is linked to cancer, reproductive harm, and other biological ills to humans, animals, and plants. Notwithstanding the extremely well-documented record of these negative impacts from RFR, the FCC released an order in December 2019 deciding that nothing needed to be done and maintaining that the existing, antiquated exposure limits are adequate now and for the future. 

EHT & CHD RESPOND

"The FCC has blocked access to the Courts," said Dafna Tachover, CHD’s director of its 5G and Wireless Harms project. “This case is the only opportunity for people, including children, who have been injured from harmful radiation to directly confront the agency for causing their injuries by its gross indifference to human life and servitude to the telecom industry.”

The legal challenge (Environmental Health Trust, et al v. Federal Communications Commission) asserts that the FCC’s recent decision to not update its 24-year-old guidelines for safe wireless exposure limits is arbitrary and capricious, in not meaningfully reviewing the abundant number of published scientific studies in the last quarter century which show biologic harm at levels lower than those accepted when the federal guidelines were set in 1996. 

In making this decision to continue using the 1996 safety guidelines, the FCC applies the guidelines to incipient 5G technology which has not yet been tested. In addition, EHT asserts that when the FCC reviewed data and made the decision to not amend the older safety standard, the FCC misrepresented the positions of other government agencies on this issue, such as the Occupational Safety and Health Administration (OSHA), the Environmental Protection Agency (EPA), and the National Cancer Institute (NCI). The case is ongoing." 

Due to COVID, the hearing will not be in person but via video conferencing and will be live-streamed. Stay tuned for further details.

 YOU CAN DONATE  EHT TO SUPPORT THIS IMPORTANT CASE 

OR TO  YOU CAN DONATE TO CHD  to support  this effort. 

For more information, watch the CHD’s press conference for our submission of the opening brief:

“©  CHD Gets Its Day in Court — Hearing Scheduled for Landmark Case Against FCC     11/24/20 ] Children’s Health Defense, Inc. Parts of  this work is reproduced and distributed with the permission of Children’s Health Defense, Inc. Want to learn more from Children’s Health Defense? Sign up for free news and updates from Robert F. Kennedy, Jr. and the Children’s Health Defense. "

 The 9th U.S. Circuit Court of Appeals largely upheld FCC rules limiting local government’s ability to regulate 5G infrastructure and cap fees.  In response to 3 FCC orders issued in 2018 to streamline the process of installing wireless facilities, with a focus on small cell antennas, multiple municipalities legally challenged these orders (Small Cell Order, Moratoria Order, and One Touch Make-Ready Order). The lawsuits were combined into one case heard by the 9th Circuit Court, in City of Portland v. United States of America; Federal Communications Commission. The petitioners included 40+ entities, including the National League of Cities, as well as individual cities and counties throughout the country. The petitioners argued that the FCC orders overreached in their authority by measures such as limiting local government authority over aesthetic considerations, setting fee limits and shot clocks, and limitations on how pole owners/operators govern access to the poles. The final decision by the 3-judge panel found that only the FCC Order’s requirement that local aesthetic regulations be “objective” and “no more burdensome” than requirements applied to other infrastructure deployment were an overreach of power. These portions of the orders were vacated and remanded to the FCC. One judge dissented from the majority on the matter of fee limitations, and held the opinion that the fee limitations should also be vacated and remanded to the FCC.Link to ruling. 

 NEPA Court Decision Used by Cities to Delay or Deny 5G Small Cell TowersA landmark Federal court case – NRDC vs FCC – was decided August 9, 2020 in favor of Native American tribes to be able to use the National Environmental Policy Act (NEPA) process to review as well as to deny applications for cell towers on the basis of the affects on the human environment and historic preservation. All major Federal projects require a level of environmental analysis and review under NEPA. The FCC stated NEPA review was eliminated  for deployment of 5G small cell towers for historic preservation or alteration of the human environment. The judge, however, ruled in favor of the  NRDC and the Native American tribes stating, “The [Federal Communications] Commission accordingly did not, pursuant to its public interest authority, 47 U.S.C. § 319(d), adequately address possible harms of deregulation and benefits of environmental and historic-preservation review. The Order’s deregulation of small cells is thus arbitrary and capricious.”  Full NEPA Blog here The Telecommunications Act Here is the  FCC Policy on NEPA and Cell Tower and Antenna Siting. Regarding siting of cell towers, they state, “FCC environmental rules categorically exclude all actions from detailed environmental review except those associated with the construction of facilities that fall into certain categories.”These categories include those

• In wilderness areas (typically Federal lands)
• Affecting endangered species
• In areas of National Register of Historic Preservation, or Indian religious or cultural areas
• In floodplain
• Create significant changes in surface features(deforestation, in wetlands, water diversions
• Affect migratory birds (over 450 feet)
• Create high intensity lighting in residential areas

 A win for cities occurred April 4, 2019 in a California court, as the battle for local control of cell tower placement continues.  San Francisco challenged the FCC interpretation of  the 1996 Telecommunication Acts rules which state that phone companies cannot install equipment that may  “incommode the public use of the road.”  Telecom companies considered that language to mean obstructing travel, but the state Supreme Court unanimously agreed that telecom companies have to abide by SF 2011 Ordinance which requires a permit for large cell tower placement and that cities can deny a cell tower permit on the grounds of aesthetics. 

T Mobile West LLC  vs City and County of San Francisco-CAlifornia Supreme Court Decision First Appellate District Divison Five April,4. 2019

In a later determination of MOBILE WEST LLC v. CITY AND COUNTY OF SAN FRANCISCO. Defendants and Respondents. Decided: September 15, 2019 A144252, the court stated, “In general, courts are cautious in applying the doctrine of implied preemption: ‘[I]n view of the long tradition of local regulation and the legislatively imposed duty to preserve and protect the public health, preemption may not be lightly found.’ [Citation.] Where local legislation clearly serves local purposes, and state legislation that appears to be in conflict actually serves different, statewide purposes, preemption will not be found.” (San Diego Gas & Electric Co. v. City of Carlsbad, supra, 64 Cal.App.4th at p. 793.) and also“The Ordinance unquestionably allows the City to condition approval of a particular Wireless Permit on aesthetic considerations…Plaintiffs’ position is that “incommode” means only physical obstruction of travel in the public right-of-way. The City, on the other hand, points out that the dictionary definition of “incommode” is broader and includes “inconvenience, discomfort, and disturbance beyond mere blockage.” (See Merriam Webster Online Dictionary … incommode> [as of Sept. 15, 2016] [defining “incommode” as “[t]o give inconvenience to; to give trouble to; to disturb or molest in the quiet enjoyment of something, or in the facility of acquisition”; denoting “less than annoy, vex or harass”; e.g., “We are incommoded by want of room to sit at ease”].) We must construe the statute.”Judge Corrigan notes,  “For our purposes, it is sufficient to state that the meaning of incommode has not changed meaningfully since section 7901’s enactment. Obstructing the path of travel is one way that telephone lines could disturb or give inconvenience to public road use. But travel is not the sole use of public roads; other uses may be incommoded beyond the obstruction of travel. (T-Mobile West, at pp. 355-356.) For example,

• lines or equipment might generate noise,
• cause negative health consequences, or
• create safety concerns.

All these impacts could disturb public road use, or disturb its quiet enjoyment.” These arguments can be used to legally allow cities to place cell towers such that they “DO NOT INCOMMODE THE PUBLIC” 

 In a courageous move to preserve local government control, Federal bill HR 530 was introduced January 14, 2019 in the House of Representatives by California Congresswoman Anna Eshoo, to invalidate the Federal Communications Commission’s (FCC) September 26, 2018 ruling to accelerate the deployment of 5G small cells throughout the U.S.  Congresswoman Jackie Speier was the first to co-sponsored the bill and now there are  49 Co-Sponsors

Eshoo HR 530Federal bill HR 530   is titled- To provide that certain actions by the Federal Communications Commission shall have no force or effect.   It simply states,“PRESERVATION OF RIGHTS OF STATE AND LOCAL GOVERNMENTS: Actions by the Federal Communications Commission in ‘‘Accelerating Wireless and Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment’’ (83 Fed.Reg. 5186783) and the Federal Communications Commission’s Declaratory Ruling in ‘‘Third Report and Order and Declaratory Ruling’’ (FCC 18-111) shall have no force or effect.” See Blog https://mdsafetech.org/2019/01/22/congresswomen-eshoo-and-speier-introduce-hr-530-to-block-fcc-cell-tower-preemption/
 

The City of Santa Cruz recently voted on February 26, 2019 to 3 to deny a Verizon permit for a cell tower application even though the antenna was approved by the Zoning Administrator in November, 2017 along with a condition of the approval that an encroachment permit approval is required.  Santa Cruz also voted to support Anna Eshoo’s HR 530 to block the FCC Ruling to streamline 5G small cell towers. To see video of the Santa Cruz City Council Meeting  go here. Council’s remarks on this issue begin around 2 hours 20 minutes. The Santa Cruz Resolution to support Representative Eshoo’s HR530 is  here- Santa Cruz Resolution Support Eshoo HR530 

On June 27, 2019 Senator Dianne Feinstein introduced SB 2012, a senate companion bill to Congresswoman Anna Eshoo’s HR530, which would similarly repeal FCC rules that limit state and local government control over telecom infrastructure. The bill is cosponsored by Charles Schumer (N.Y.), Michael Bennet (Colo.), Kamala D. Harris (Calif.), Ron Wyden (Ore.), Ben Cardin (Md.) and Richard Blumenthal (Conn.). The bill is supported by the U.S. Conference of Mayors, National Association of Telecommunications Officers and Advisors, American Public Power Association, Communications Workers of America, National Association of Counties, League of California Cities and American Public Works Association. Feinstein press release.  Restoring Local Control Over Public Infrastructure Act of 2019’’ 

The 1996 Telecommunications Act of 1996 has several clauses to consider. One prohibits any discussion of health or environmental harm in a public forum or for denial of a permit. It also  discusses discrimination of carriers, the language of  “significant gap in coverage” as a reason for approving a permit. Supplying written substantial evidence is important for cities who wish to deny a permit.Telecommunications Act 1996

The Spectrum Act,  is an added section of the Payroll Deduction Act and called the  Middle Class Tax Relief and Job Creation Act of 2012, This Act facilitates the telecommunications industry’s rapid deployment of wireless  infrastructure by requiring local governments to approve any application by a carrier that asks to modify and existing cellular communication structure that does not “substantially change” the existing facility.   Section 6409 states cities ““may not deny, and shall approve any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.” (47 U.S.C. § 1455(a)(1).) Section 6409 defines “eligible facilities request” as “any request for modification of an existing wireless tower or base station that involves –(a) collocation of new transmission equipment; 

Cities should decide how and where 5G is deployed. We can’t ignore how potentially intrusive deployment of internet infrastructure will affect our cities. The Mercury News. Jan 16, 2020. https://www.mercurynews.com/2020/01/16/opinion-cities-should-decide-how-and-where-5g-is-employed/ 

 The FCC’s Approval of SpaceX’s Starlink Mega Constellation May Have Been Unlawful. January 16, 2020. Jonathan O’Callaghan. Scientific American. https://www.scientificamerican.com/article/the-fccs-approval-of-spacexs-starlink-mega-constellation-may-have-been-unlawful/