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| Public Policy - Litigation Page | |||||||||
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Court of Appeals Case
In 1997, CWTI got started in response to the need for citizens to organize and take action. Libby Kelley and David Fichtenberg formed the Ad Hoc Association of Parties Concerned about the FCC's Radio Frequency Health and Safety Guidelines (AHA) and managed a major public policy appeal challenging the federal government in the U.S. Court of Appeals over draft Federal Communications Commission guidelines governing human exposure to radio frequency radiation and several other constitutional and administrative issues, most particularly the 10th amendment, governing reserved state powers. In this case, the Federal Telecommunications Act of 1996, Section 704, was challenged as it preempted local government from taking health concerns into account in making decisions to site wireless antenna facilities. The court denied AHA's appeal in February 2000. (see press release below) Ad Hoc Association Of Parties Concerned about the Federal Communications Commission Health & Safety Rules (now CWTI).
February 2000
from wireless communications technologies On February 18, the U.S. Court of Appeals, 2nd Circuit, rendered a long awaited decision on a major citizen-led court challenge to the Federal Communication Commission rules (under Docket Nos. 97-4328(L); 98-4003(Con); 98-4005(Con); 98-4025(Con); 98-4122(Con). The court affirmed the FCC rulings on all counts in this decision, which was released after a ten-month hiatus following oral arguments. Meanwhile, the wireless telecommunications facilities rollout continues surging through communities throughout the United States. The Ad Hoc Association of Parties Concerned about FCC Radiofrequency Radiation Health and Safety Rules ("AHA"), one of the major appellant groups, just announced plans to appeal this decision to the Supreme Court on violations under the 10th Amendment, at a minimum. Three separate groups, the AHA, the Communication Workers of America ("CWA") national organization and, the Cellular Phone Taskforce, representing numerous grassroots groups, telecommunications workers, and persons suffering from environmental illness, filed for federal review of FCC rulemakings in October, 1997, following final publication of FCC rules to promulgate guidelines for health and safety standards of radio frequency radiation (RFR), streamline procedures to meet National Environmental Policy Act requirements for FCC licensees, retaining FCC's exclusive ability to regulate wireless facility operations. The major legal issues raised in the appeal were: 1) The Guidelines for Evaluating the Environmental Effects of RadioFrequency Radiation, 11 F.C.C Rcd. 15123 (1996), and, 2) Constitutional violations under the 10th, 5th and 1st Amendment, and statutory violations pursuant to FCC 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, 12 F.C.C. Rcd 13494 (1997). The lead attorney in the consolidated appeal was James R. Hobson, Esq., of Donelan, Cleary, Wood and Maser, P.C., Washington D.C. Filing an amicus brief in support of the petitioners on behalf of citizens in New England was the law firm of Seymour and Landy in New York. The FCC was supported by intervener briefs filed by major U.S. telecommunications and broadcast corporations including, the Cellular Telephone Industry Association (CTIA), the National Association of Broadcasters (NAB), ATT Wireless Corporation, the Electromagnetic Energy Association (EEA) and, the Association of Maximum Service Television (AMST). The law offices of Whitney North Seymour, Jr., Seymour and Landy, has offered to assume pro bono legal representation for the Supreme Court appeal to AHA, which is also known as The Council on Wireless Technology Impacts (CWTI). Mr. Seymour served as an U.S. Attorney and is the founder of the National Resources Defense Council. The Seymour and Landy law practice specializes in Health Care, Administrative and constitutional Law. The legal challenge will focus on constitutional issues under the 10th Amendment, at a minimum. Mr. James R. Hobson, Esq, who served as lead attorney for the appellate court appeal will be retained as a consultant for the pending appeal. The petitioners claimed in lengthy arguments, supported by numerous affidavits, that FCC Guidelines violates the Americans with Disabilities Act and the Rehabilitation Act; that FCC was arbitrary and capricious in enacting the Guidelines in violation of the Administrative Procedures Act (APA), specifically 5 U.S.C. 706(2)(A); that FCC violated the National Environmental Policy Act (NEPA) by failing to prepare an environmental impact report; 4) that FCC exceeded its powers when it prohibited state and local governments from regulating the operation of personal wireless service facilities according to the FCC's radiofrequency guidelines; and, by preempting state and local powers to consider health and environment in making wireless telecommunications decisions, the Federal Telecommunications Act of 1996 (47 U.S.C. 332(c)(7)(B)(iv), is unconstitutional. According to David Fichtenberg, AHA President, "We believe the Court has ignored strong factual evidence which shows that FCC unlawfully failed to assure public health protection in adopting the current radiofrequency human exposure guidelines. Further, we believe it is unlawful to preempt local government ability to protect public health from potentially hazardous exposure to low intensity radiation. We call for a public policy solution to the serious imbalance that exists in the U.S., which allows for industry control over the scientific research agenda, the RF radiation exposure standard-setting process. with little regulatory control over what is emerging as a major new public utility. " The AHA suit contends that there are several major flaws in the FCC rules that are placing people's lives and their health at stake. A case in point is Larry and Susan Stankovitch in Duanesberg, New York, who for the past three years, have been living in a home they lovingly built themselves, while being exposed night and day to what many scientists believe are potentially hazardous conditions due to RF radiation exposure. A cell tower transmitter 1700 feet away at the same altitude as their hillside homes beams through their neighborhood. A professional engineer just tested in one of the homes and found readings in excess of 70 uW/cm2 (The U.S. RF exposure limit is 200uW/cm2). This family has repeatedly appealed to federal and state officials, including direct appeals to the FCC, but no relief is in sight. They say "it would be wrong to sell their home and pass this hazardous conditions along to someone else". The U.S. RF exposure guidelines set the threshold for unsafe RFR exposure at the thermal effects level and permit among the highest legal exposure conditions in the world. The reason for this is well understood to be the result of a well-financed and orchestrated lobbying effort on behalf of the wireless communications corporations and to preserve military interests at home and abroad. Other countries have applied much lower standards, including Switzerland, Russia, Italy and China. Austria is the first country to set standards to ensure the radiation environment, or "electrosmog", meets a certain lowered threshold. The City of Toronto, Canada, has proposed that wireless carriers voluntarily meet lower emissions standards. The United Kingdom will publish a major report in April that is expected discourage "mobile base station mast" siting near residences and schools. Presently, Senator Leahy (D-Vt.), Senator Jeffords (R-Vt.) and Congressman Sanders (I-Vt.) are proposing to include funds to conduct radiofrequency research in the FY 2001 Health and Human Services appropriations language. The National Institute of Health would be allocated up to $50 million over 5 years on the first-ever evaluation of RF ambient radiation bioeffects. In addition, the Vermont Congressional delegation has two bills under consideration in both Houses of Congress, S. 1538, H.R. 2834 and H.R. 2835. In California, Senator Tom Hayden just introduced a consumer oriented cell phone bill (SB 1699), that would require the state health agency to do an RF bibliographic review, to require state-licensed retailers to post warning signs at sales locations and to advise customers to purchase and use hands-free protection devices. The AHA decision to appeal to the Supreme Court will send a message of hope and encouragement to the millions of Americans who are seeking relief from the onslaught of wireless transmitting antennas and towers. Citizens are hard-pressed to know what to do to effectively oppose a cell tower proposal. They often become embattled with their neighbors and local government in an effort to protect homes, children's playgrounds and church steeples from becoming a preferred site for wireless transmitters. Cheryl Ciccone, a Haversford, Pennsylvania, mother of two and daycare provider, who is actively opposing a wireless installation at the church building where her day care center is located, speaks for many when she writes " I may create some enemies in my church and daycare, but as you know, a mother would lay down her life for her child." Janet Newton, Executive Officer for the EMF Network in Vermont, one of over fifty individuals who signed onto the AHA initial appeal, calls for Federal intervention in order to protect people from harm. She states: "We hope the reasoned debates taking place as wireless technologies unfold will lead to more protective public health, environmental and consumer safety protections for all. Technology always brings unintended consequences and technological development is never neutral. Government must be more proactive in setting public health-based policy for safe RF exposure limits." ###### Following denial of the U.S Court of Appeals in February, 2000, CWTI joined with the EMR Network and other interested parties to launch a U.S. Supreme Court appeal which was later denied. See links for more information on these landmark cases. The U.S. Supreme Court apparent reluctance to intervene at this time places the responsibility on the U.S Congress, who enacted the Federal telecommunications Act of 1996 and has yet to hold hearings on the citizen concerns raised by these claims. Meanwhile, it is clear that there is a building number of lower court case law decisions which may eventually lead us back to the U.S. Supreme Court in order to reconcile internally contradictory federal court decisions. Some of the major Federal Appeals Court Cases on Cellular Wireless Antennas: e Case Law, Citations and Excerpts
Sprint Spectrum L.P. v. Willoth "We do not read the [Telecommunications Act of 1996] to allow the goals of increased competition and rapid deployment of new technology to trump all other important considerations, including the preservation of the autonomy of states and municipalities." "A local government may also reject an application that seeks permission to construct more towers than the minimum required to provide wireless telephone services in a given area. A denial of such a request is not a prohibition of personal wireless services as long as fewer towers would provide users in the given area with some ability to reach a cell site." "Furthermore, once an area is sufficiently serviced by a wireless service provider, the right to deny applications becomes broader." "We hold only that the Act's ban on prohibiting personal wireless services precludes denying an application for a facility that is the least intrusive means for closing a significant gap in a remote user's ability to reach a cell site that provides access to land-lines."
APT Pittsburgh Partnership v. Penn Township ". . . [A]n unsuccessful provider applicant must show . . . that its facility will fill an existing significant gap in the ability of remote users to access the national telephone network. . . . Not all gaps in a particular provider's service will involve a gap in the service available to remote users. The provider's showing on this issue will thus have to include evidence that the area the new facility will serve is not already served by another provider."
AT&T Wireless PCS v. City Council of City of Virginia Beach "The [Telecommunications] Act explicitly contemplates that some discrimination 'among providers of functionally equivalent services' is allowed. Any discrimination need only be reasonable." "It is not only proper but even expected that a legislature and its members will consider the views of their constituents to be particularly compelling forms of evidence, in zoning as in all other legislative matters. These views, if widely shared, will often trump those of bureaucrats or experts in the minds of reasonable legislators."
Cellular Telephone Co. v. Zoning Board of Borough of Ho-Ho-Kus Local governments can consider "quality of existing wireless service" in rejecting an application |
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