5G Information for Citizens of the 10th Legislative District

Mark Wahl of CLEAR Website: ClearWhidbey.org Email: [email protected]

[NOTE: Printed version has no live links. Email Mark at CLEAR to request the e-doc or go online to https://clearwhidbey.org/handout-10th-district/.]

There is currently widespread concern by governments around the country about how 5G and the FCC Ruling “Accelerating Wireless Broadband Deployment” of January 2018 are to be handled. We of CLEAR feel that a wrong move here could lock our Counties and cities into rolling over for the whims of the FCC and wireless carriers like Verizon and AT&T that it shamelessly promotes. At the moment there is nowhere in government any regulation protecting citizen health and welfare in reslation to wireless radiation in general and 5G in particular. As an example of numerous sources of expert information out there (and that we could provide any interested parties), I will quote an article from Physicians for Safe Technology (PST) that summarizes the current 5G regulatory atmosphere:

“The requirement for wireless carriers to show a significant gap in coverage or to provide the least intrusive method of filing a gap have been removed for small cells. Permits for small cell facilities are to be administrative and not by approval of city councils or boards (cannot be Conditional Use Permits). There is a limit that cities can charge per pole; batched permits are allowed and cannot be denied–no moratoriums on cell towers are allowed. This policy took effect January 14, 2019 with a deadline of March 14, 2019. Cities and Counties are struggling to understand the new rules and decide how they should proceed with updated or interim wireless facilities ordinances as this creates a burden on their governmental processes. Some cities have continued to require similar conditional use single antenna permits for small and large cell towers in the hope that the FCC ruling will be overturned and ultimately deemed unconstitutional.

[Google the FCC Order 18-133: A fact sheet and ruling of the FCC Order Docket 17-79 and 17-84 Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment reviews new state and local requirements.]

70 Cities in Court to Challenge New FCC Rules

After the September 26, 2018 Ruling was passed by the FCC, more than a dozen cities including Los Angeles, Seattle. San Jose, Portland, Eugene, and others [link] challenged the FCC over these restrictions. The wireless industry states they will loose $2 Billion, but the cities consider that the FCC Ruling is instead a giveaway to industry. The Ninth Circuit Court was asked to review the rules and give an opinion. On November 6, 2018, these lawsuits were consolidated with several other lawsuits in the western States including Las Vegas and  Portland, and through a lottery, sent to the 10th Circuit Court of Appeals,then transferred to the 9th Circuit

This battle between local governments and the FCC goes on in the 9th Circuit as you read this. This leads, in a small more rural jurisdiction like Island County, to the need for a decision as to how to move forward under the Big Wireless pressure to build infrastructure that will increase. There are two major alternatives to consider; these have been utilized by authorities around the country.

Option 1) Table considerations for this year and wait to see how lawsuits regarding the FCC regulation proceed. Danger: If this is done there is the possibility that Verizon (or AT&T) could attempt to acquire preliminary access agreements with the county to locations for future cell antennas. Any agreements with wireless operators that are guided by the FCC regulation should be postponed (or at least must be called “conditional” as many cities/counties have done) until clarity is reached about the legality of the whole FCC regulation agenda. (See also this link about a current congressional bill proposed to stop the FCC pre-emption of local sovereignty.) The same (linked here:) PST article quoted above says “It is thought by some that the decision by the Ninth Circuit Court of Appeals will not be heard until the summer of 2019 with a decision in early 2020.” With this delay a gray area exists where wireless companies may be trying, even in our lower priority area, to jostle for early control of the 5G rollout infrastructure, even before this Ninth Circuit ruling. Care must be taken not to surrender land use planning, citizen safety, potential property value drops near tower locations, and aesthetic standards, to the wireless industry.

Option 2) The PST article says: “California cities have already begun passing urgency ordinances for 5G/Small Cells: Petaluma, Mill Valley and other cities have written and updated their ordinances to maintain some control of utility poles and cell towers until the rulings become law. Calabasas, California has an ordinance with not only preferred locations but also restrictions on small or large cell towers in residential areas… Burlington Massachusetts set up a policy to require annual recertification of small cells with a fee, causing Verizon to withdraw it’s application. Cities are also looking at Municipal Fiberoptic Options. [George Henny of Whidbey Telecom has recently expressed to me a strong willingness to discuss extension of their fiberoptic network north and also help address the challenge of 5G with it. They are working with the Port of Coupeville to extend their fiber cable to facilities and they have a link ready to Camano should the need arise. There is a Copper Landline alert to cities to protect and maintain their important copper-wired emergency communication system. Other states are moving forward with fiber Streamlining bills and there are areas in WA that have community-owned fiber networks: PUDs in Benton, Chelan, Franklin, Grant, Mason, and Pend Oreille Counties; other places in the US have publicly owned networks. Caution: If local populations are not on their guard these networks can be co-opted by contracts with Big Wireless to have them used to power 5G antennas everwhere. Even though fiber-optics can already bring lightning-fast signals to every door.

It is important to note these legal points: There is a strong upwelling of citizen concern about the untested health effects of this rollout. There is a mountain of international peer-reviewed research that demonstrates the biological harm that irradiation by cell tower energy causes. It is no longer a question that close-up radiation from towers causes physical illness. The wireless industry juggernaut has simply ignored testing for safety of 5G, which functions on radar-frequency radiation of the type developed for crowd control by the US military. This very small wavelength frequency is known to have local heating effects at each sweat gland and can damage the eye retinas (references can be provided). A county or city government, by granting access to a location for a cell tower near residences (thinking it is simply conforming to the questionable FCC regulation) does not avoid being sued under the ADA, American Disabilities Act, or for assault, harm to personal space, and many other aspects of the law, by any of the ~10% of citizens that suffer from EMS (electromagnetic sensitivity) or microwave sickness. A county cannot claim ignorance of health harms as an excuse, as the information is easily accessed (and we of CLEAR will continue to provide it to the County). By consenting to a health-threatening location of an antenna, the county or city becomes an accessory to any health damage challenged by a citizen. There have been successful lawsuits of this type in Australia and the crack lawyer there claims the same approach can be used in the US. Meanwhile, Verizon and AT&T fall back on an interpretation of the 1996 Telecommunications Act that they feel exempts them from any challenge on the basis of health. A County or city has no such basis of immunity and becomes open to a storm of litigation from injured sensitive citizens.

I urge you to consider this issue in depth as you make a decision as to how your citizens and government should approach or hedge their approach to the FCC regulation. Here is a 7-minute video of the town council in the city of Danville CA considering, with strong citizen input, what to do about a Verizon push for a cell tower that is unwanted by the populace. It is a very good watch: Danville ultimately voted to resist Verizon and risk one lawsuit from them instead of many from a host of injured citizens.


Appended Information: https://mdsafetech.org/cell-tower-and-city-ordinances/ gives an excellent summary of current output from cities on this issue:

Some quotes:

“Some cities have continued to require similar conditional use single antenna permits for small and large cells towers in the hope that the FCC ruling will be overturned and ultimately deemed unconstitutional.”

“On November 6, 2018, these lawsuits [more than a dozen cities including Los Angeles, Seattle and San Jose] were consolidated with several other lawsuits in the western States including Las Vegas and Portland, and through a lottery, sent to the 10th Circuit Court of Appeals…the cities have argued that the FCC Declaratory Ruling is ambiguous, overreaching, unreasonable and raises constitutional issues…It is thought by some that the decision by the Ninth Circuit Court of Appeals will not be heard until the summer of 2019 with a decision in early 2020.”

“December 3, 2018 Congress members Blumenthal and Eshoo then wrote a letter to FCC Commissioner Carr asking for proof of safety of 5G.”

Link to (20 min) video articulately giving the big picture about the problem of no safety research and 5G hazards to people and wildlife, including Blake Levitt, environmental scientist and Senator Blumenthal of CT.

Available for any of your legal counsel(s): CLEAR has a 38 pp PDF of a letter from principal attorney Harry V. Lehmann of Novato CA, “Limiting the Scope of Marin’s financial risk for 5G Litigation” describing several legal strategies for a county dealing with 5G litigation vis a vis the FCC regulation and aggressive approaches by wireless providers. With this encouragement, Marin County passed an “Urgency Ordinance” severely limiting options for wireless providers and subjecting them to strict standards.