[Disclaimer: For informational and educational purposes; personal opinion of the author; not to be construed as legal advice.]
Many municipalities are capitulating in negotiations with wireless companies when they are threatened or sued for wishing to protect their citizens from the harms of 4G + 5G pulsed, data-modulated, Radio-frequency Electromagnetic Microwave Radiation (RF-EMR). Mayors and city councils across this country are convinced they do not have a right to say “no” to the dense cell towers and antennas being erected in public rights-of-way.
What if in fact they have viable options? How can municipalities in the U.S. negotiate more effectively and level the playing field, taking optimal advantage of federal and state laws?
A favored tactic now being deployed by the FCC and industry promoters of 4G and 5G densification is establish false and invalid assumptions. This tactic engenders fear, desperation, despair, resignation, and, most tragically, loss of hope. It is designed to squander municipalities’ time and energy. The antidote for mayors, city councils, and citizens is to cultivate integrity and resilience, and bring their power, intelligence and wisdom to the table (learn more).
These negotiation turns on three controlling assumptions.
The wireless industry and the FCC have a monopoly of legal authority, based on the Telecommunications Act of 1996 and reinforced by some state legislatures.
The current wireless environment (3G-4G), as well as the emergent 5G, is safe.
Mayors and council members are free of their own legal liabilities when acceding to the demands of the wireless companies and the FCC.
In fact, all three assumptions are highly questionable.
There is a reasonable chance that the authorizing provisions of the 1996 Telecommunications Act, and the overreaching FCC rules implementing them, will be held unconstitutional, in violation of home rule, separation of powers, due process, and uncompensated taking, under the 1st, 5th, and 14h Amendments to the Constitution.
- The U.S. Supreme Court has already recognized the principle of “cooperative federalism,” which will counterbalance the FCC’s aggressive use of the preemption doctrine.1
- The California Supreme Court in T-Mobile v. City and County of San Francisco has also confirmed the fundamental right of local municipalities to protect the health and safety of their citizens.2
- On August 9, 2019 the D.C. Circuit ruled that the FCC 5G Program must conform with the basic provisions of the National Environmental Policy Act (NEPA).3 And there are various federal laws protecting the public from false and misleading advertising, such as touting the benefits of densified 4G and 5G without warning of its attendant harms.
There is significant scientific evidence that pulsed, data-modulated, Radio-frequency Electromagnetic Microwave Radiation (RF-EMR) exposures associated with 3G and 4G wireless technologies are closely linked with cancer, damage to mitochondria and DNA, neurodegenerative illnesses, and cardiac disease. There is also significant scientific data also on the hazards of RF-EMR exposures to children, pregnant women, the elderly, and people with special sensitivities and disabilities. In 2018, a National Toxicology Report on Cancer recognized that RF-EMR exposures are the cause of malignant brain gliomas and heart schwannomas in rats.4 Less well appreciated is the fact that 4G and 5G densification scheme is a form of government and industry enforced national addiction to faster and faster internet speeds.
Assumption # 3:
Australian barrister, Raymond Broomhall, has implemented a powerful protocol based on the Precautionary Principle with great success in Australia. Approximately 2,500 4G/5G cell sites have been halted in Australia. I believe this same protocol has a good chance of being adopted and applied in the U.S., if similarly effective alliances can be forged between citizens, attending physicians, and attorneys, as is currently happening in Australia. Under Barrister Broomhall’s Precautionary Rule– which I am calling the “Principle of Heightened Vigilance”5–and basic tort principles of foreseeability and duty of care, I predict that mayors and city councils in the U.S. may face civil, and even criminal, liabilities for assault and related illegal activity. Mr. Broomhall’s protocol is elegantly straightforward:
Document, organize, measure, collate, and publish all data on RF-EMR exposures and harms.
Secure an Advisory Letter from an attending physician confirming the patient’s own concerns and wishes not to be irradiated from a medical perspective (establishing a physician-patient confidentiality relationship).
Present a well-reasoned and documented Letter of Objection and Warning from a licensed attorney, creating a record that the patient refuses to consent to be irradiated with pulsed, data-modulated, Radio-frequency Electromagnetic Microwave Radiation, deeming a dismissal or ignoring of such Objection/Warning to be confirmation of an intent to assault. Similar to Australian law, the California Penal Code explicitly imposes strict criminal liabilities on those who assault children, elderly citizens, and people with special disabilities. As 5G towers are planned on public spaces, municipal authorities and those immediately responsible will be become primary actors, enablers, and accessories of the foreseeable harms alleged.
Mayors and city council members should ask, “How can I protect the citizens of my community?” What do I really want? If the answer is to say ‘No’ to the densified 4G and 5G rollout throughout their cities, then the following actions should be considered under the Principle of Heightened Vigilance outlined above:
Immediately launch a massive 4G + 5G densification public education program. (A Sample Kit will soon be available for download from the 5G Summit web site.)
Initiate on-going monitoring of RF-EMR exposures, and equip citizens and local organizations with proper RF-EMR meters (with the training of how to use and understand the findings).
Instruct hospitals and health care providers to monitor, assess, and report on negative health consequences from RF-EMR exposures from Wireless Telecommunications Facilities (WTFs), Wireless Access Points in schools and from use of wireless devices.
Issue abatement orders recognizing uncontrolled RF-EMR exposures above a guideline that would protect against adverse biological effects and negative health consequences — as a public nuisance.
Establish advisory RF-EMR exposure guidelines based on this standard for school classrooms, hospitals, and workplaces.
Document evidence of assaults and other illegal acts and collaborate with local prosecutors and state legislators.
Hold public town meetings (in venues not rented by Wireless carriers or their agents) where all stakeholders, including representatives of the wireless industry, are welcomed to present their case and openly debate the options.
Call for a referendum and invite the community to vote on whether it wants densified 4G and 5G installed throughout their city on so-called "Small Cells"; and if so, under what terms and conditions.
Collaborate with thousands of other communities across the U.S. and abroad that are sharing data, scientific, technological, and legal expertise, and other assets, including financial resources.
A Viable Alternative
There is a viable and safer alternative to a ubiquitous wireless juggernaut. It is a predominantly wired/fiber optic infrastructure, which was nationally funded over a decade ago. Wired internet for Big Data (think video steaming and gaming) has significant advantages over wireless internet, in that it is more reliable, more secure from hacking, more energy efficient, faster, and essentially radiation-free (if not then distributed by Wi-Fi).
It has been shown that communities implementing a wired, fiber optic alternative not only realize a positive return on investment, but will also have a strategic economic advantage over wireless.6 “SafeG” communities will attract superior companies that are concerned with the health of their employees and the environment, and such companies will create local jobs and catalyze innovation. Of course, wireless can play an important role in these communities as well, because the public benefits from telecommunications services (call, texts, maps) for mobile devices, but wireless is not needed for video streaming or gaming (one can download files to their mobile devices, just as we did with early iPods).
Think about the alternatives.
The author expresses his appreciation to his colleagues, Ben Levi, Trevor Marshall, Ph.D., William Moulton, Raymond Broomhall and Josh del Sol for their comments and background research.
© Copyright September 2019 Julian Gresser/Big Heart Technologies. All Rights Reserved
Julian Gresser is a licensed California attorney, and currently Chairman/CEO of Big Heart Technologies, Inc., a California Benefit Corporation. He was twice Mitsubishi Visiting Professor at the Harvard Law School and was Chairman of the Japan Industrial Policy Group in the U.S. State Department during the Carter Administration, an interagency task which developed a national industrial policy in effective collaboration with the semiconductor industry. His online course, The Resilient Negotiator—Meeting the 5G Network Challenge, is available at: https://resiliencemultiplier.com/5g-trn/
The United States Supreme Court described the way that Congress intended the Telecommunications Act of 1996 to operate: “Congress ultimately rejected the national approach and substituted a system based on cooperative federalism… State and local authorities would remain free to make siting decisions. They would do so, however, subject to minimum federal standards—both substantive and procedural–as well as federal judicial review.” (US Supreme Court 544 U.S. 113 (2005), 03-1601, City of Rancho Palos Verdes v. Abrams. See also TCA 332(c)7, and TCA section 255). ↩
The April 4, 2019 California Supreme Court unanimous decision in T-Mobile v. City and County of San Francisco upholding the San Francisco ordinance requiring telecommunications companies to get permits before placing antennas on city infrastructure. Note in particular that the Court affirmed that “inherent local police power includes broad authority to determine, for purposes of the public health, safety, and welfare, the appropriate uses of land within a local jurisdiction’s borders” (pg. 5) and “…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” (pg. 9). ↩
See https://www.emfscientist.org/index.php/science-policy/emf-science-and-related-policy-developments for more studies of EMF effects. ↩
A leading Japanese precedent applicable to Civil Code jurisdictions is the decision of the Yokkaiichi Court that recognized the individual liabilities of six petrochemical facilities for the bronchial illnesses of residents of the Yokkaiichi Village in Japan. The Court ruled that the burden of proof shifted when plaintiffs were able to show the: a) origin of the toxic substance, here NOx, Sox; b) the pathway of transmission; and c) the point of entry (lungs and skin), supported by clinical, experimental, and epidemiological evidence. See Julian Gresser, Koiichiro Fujikura, Akio Morishima, Environmental Law in Japan (MIT Press 1981). A seminal California court decision on multiple sources of pollution is Sommers v. Tice. ↩