C-D Letter, V-5


To: [City Council Members, their Counsel; County Board of Supervisors, their Counsel]

From: [Attorney Name or other Sender Name]

Re: Notice of Appellate Decision relevant to, and Notice of Cease and Desist from, Processing and Approving Applications pertaining to all 4G and 5G Small Wireless Telecommunications Facilities (“sWTFs”), and from any placement, construction, modification and operations thereof, as non-compliant with 8/9/19 Case 18-1129 Ruling

Date: [____________]


Notice to Agent is Notice to Principal; Notice to Principal is Notice to Agent

Dear __________________________________:

You have currently before you, or soon will have, applications submitted to you or your staff, requesting authorization to place, construct, modify and operate small Wireless Telecommunications Facilities (“sWTFs”) — which the Wireless industry has branded "small cells" — on street lights, utility poles or other street furniture in the public rights-of-way, to facilitate the deployment of a close-proximity, microwave-irradiating network, enabling not only internet data and voice and text transmissions, but also surveillance, crowd-control, and personal injury by pulsed, data-modulated, Radio-frequency Electromagnetic Microwave Radiation (RF-EMR). From Dec 12, 2019 discussions with Federal Communications Commission (“FCC”) NEPA attorneys, Aaron Goldshmidt, Erica Rosenberg and Paul D’Ari, we have learned that “every single Wireless telecommunications facility (“WTF”) must undergo NEPA review”.

This fact was also corroborated by outside counsel for Verizon Wireless, Paul Albritton, in the public record at the San Francisco Board of Appeals on Nov 20, 2019, when at 3:34:55 in the proceeding video Albritton said:

“My colleague, Melanie Sangupta, reminded me that NEPA does apply nationwide so all of our facilities go through NEPA. I didn’t mean to suggest anything with respect to that case [No. 18-1129, United Keetowah et al. v. FCC] that we don’t have NEPA review.”

Kindly note that both wireline and wireless internet protocol transmissions formerly fell under FCC Title II, regulated "Telecommunications Services," but, as of Oct 1, 2019, these services were confirmed by the DC Circuit Courts of Appeals in Case No, 18-1051, Mozilla et al. v. FCC, to be reclassified by the FCC as Title I, unregulated "Information Services". At present, only wireline and wireless voice transmissions are classified as Title II, regulated "Telecommunications Services. Title I and Title II applications, therefore, might well be treated differently by local planning boards and commissions, perhaps with separate file cabinets, or even, in larger cities, evaluated by separate staff. This regulatory distinction means that no preemption applies to WTF applications that purposed for internet protocol transmissions. Indeed, instead of permitting WTFs, various local governments around the country have decided to supply public fiber-optics to the premises (FTTP) for internet protocol services, which is superior in every way to wireless internet protocol transmissions. Such decisions can enrich the local economy while preserving the quiet enjoyment of streets.

Note also that the infrastructural copper wires and almost all fiber-optic cables already in place were financed with public money and reside in public conduits or on utility poles in the public rights-of-way. Such fiber-optic cable or copper wirelines cannot lawfully be claimed or exclusively used by unregulated private wireless companies as if they were private property, purposed for private profit.

When the locality reviews the incoming WTF applications, the locality will need to determine the true identities of the applicants. As obvious as this may seem, the specific agent, shell company or franchise of the Wireless Carrier needs to be named as its true corporate identity and it must list its board of directors on the application.

Typically, local governments do not give building permits to poorly designed structures that do not meet the standards and intent of the local and national building codes, which are purposed for life, safety and public welfare. Equipment designed in such a way as to inflict biological harm upon the public should not be given a building permit or permission to operate, as doing so would be in violation of the intent of established municipal codes.

Existing standards and codes such as local and national building codes, fire codes, general plans, and city and county guidelines, are purposed to avert harm, manage risk and liability, and protect and serve the public welfare. The failure to uphold codes constitutes malpractice — a legal liability — and is unjust to the public. Precedents include authorities’ handling of lead, asbestos, cigarette smoking, seatbelts and airbags, noise, flame retardants, and so on. Telecoms’ aggressive intrusions into local governments often bypass these local protections, with pressures imposed upon officials to bend to the FCC’s whims. However, such overreaching may be produced by, or result in, fraud.

WTFs cannot meet the intent of local standards by:

  • Causing widespread biological harm — the root of myriad adverse health effects;
  • Compounding the effects of multiple, simultaneous wireless frequency/wavelength deployments, and wave amplification by means of peaks of RF-EMR that create constantly varying hot spots” that are not accounted for in FCC RF-EMR exposure guidelines;
  • Producing interacting mechanical vibrational energy, a form of noise nuisance;
  • Ruining the quiet enjoyment of streets and the other aesthetics of communities and their landscapes; and
  • Increasing fire risk from the deployment of poorly designed, Advanced Metering Infrastructure (AMI) electric meters, from the unnecessarily high levels of electrical consumption, from the installation and operation of industrial equipment above high voltage electrical supply lines (which violates Cal/OSHA rule § 2946 and from transmitting high RF-EMR exposures near high voltage electrical supply lines., flammable trees and landscaping.

For your reference, the Uniform Building Code (here 1970, Part 1, Chapter 1, Section 102) states,

“The purpose of this Code is to provide minimum standards to safeguard life or limb, health, property, and public welfare by regulating and controlling the design, construction, qualify of materials, use and occupancy, location and maintenance of all buildings and structures within the city and certain equipment specifically regulated herein."

The more developed 2019 California Building Code, Title 24 states in greater detail:

“The purpose of this code is to establish the minimum requirements to safeguard the public health, safety and general welfare through structural strength, means of egress facilities, stability, access to persons with disabilities, sanitation, adequate lighting and ventilation and energy conservation; safety to life and property from fire and other hazards attributed to the built environment; and to provide safety to fire fighters and emergency responders during emergency operations.”

States’ building codes may differ somewhat; but, according to the U.S. Federal Emergency Management Agency (FEMA), the purpose of building codes is to "specify the minimum requirements to safeguard the health, safety, and general welfare of building occupants."

Therefore, under the Tenth Amendment and other federal and state provisions, any federal law or rule, such as from FCC, purporting to override the health, safety, and/or general welfare can and must be overridden as prior superseded.

We call to your attention that, on August 9, 2019, the DC Circuit Court of Appeals, in its Ruling in Case 18-1129 (copy of which is attached hereto) vacated FCC Order 18-30‘s deregulation of sWTFs and remanded this to the FCC. In Case 18-1129, the judges stated that “the FCC failed to justify its determination that it is not in the public interest to require review of [sWTF] deployments” and ruled that “the Order’s deregulation of [sWTFs] is arbitrary and capricious.”
The DC Circuit judges, whose Court is esteemed as superseding the other Circuit Courts and only subsidiary to the U.S. Supreme Court, published reasons for their 8/9/19 Ruling, concluding:

  • The FCC failed to address that it was speeding densification “without completing its investigation of . . . health effects of low-intensity radiofrequency [microwave] radiation”.
  • The FCC did not adequately address the harms of deregulation.
  • The FCC did not justify its portrayal of those harms as negligible.
  • The FCC’s characterization of the Order as consistent with its longstanding policy was not “logical and rational.” . . . because the FCC mischaracterized the size, scale and footprint of the anticipated nationwide deployment of 800,000-unit network of sWTFs.
  • Such sWTFs are “crucially different from the consumer signal boosters and Wi-Fi routers to which the FCC compares them”.
  • “It is impossible on this record to credit the claim that [sWTF] deregulation will ‘leave little to no environmental footprint.’”.
  • The FCC fails to justify its conclusion that sWTFs “as a class” and by their “nature” are “inherently unlikely” to trigger potential significant environmental impacts.

Therefore, this 8/9/19 DC Circuit Ruling renders every sWTF application in [______ City / _______ County] incomplete if the application does not have substantial written evidence of NEPA review. The DC Circuit judges provided judicial reasoning for remanding the matter back to the FCC so it could write rules specific to sWTFs “as a class” that address the need for the FCC and the wireless industry to complete Environmental Assessments (“EA”) and / or Environmental Impact Statements (“EIS”) for the anticipated nationwide deployment of an 800,000-unit network of sWTFs. This judicial reasoning pertains to the class of sWTFs that includes the antennas, radios, and ancillary equipment that are often attached to utility poles, light poles and other street furniture.

As printed in the Federal Register on 11/5/19, the repeal of FCC 18-30 — a section of the Commission’s rules implementing the sWTF exemption — resulted in a lack of sWTF-specific rules on the effective date of December 5, 2019.
The anticipated nationwide deployment of 800,000 additional sWTFs is clearly a federal undertaking, since the wireless industry licenses its wireless spectrum frequencies from the federal government. Every single sWTF planned for [________City / _______ County] is part of this federal undertaking.

Until such time as the applicant for any single sWTF in [________City / _______ County] places substantial written evidence in the public record proving that the applicant has completed NEPA review for the sWTF, the application remains incomplete, and its relevant shot-clock remains stopped.

Further, on October 1, 2019, the DC Circuit Court of Appeals further ruled against FCC overreach in Case 18-1051, which states on page 146, re: Restoring Internet Freedom, 33 FCC Rcd. 311 (2018) (“2018 Order”):

"[Because] the Commission’s Preemption Directive, see 2018 Order ¶¶ 194–204, lies beyond its authority, we vacate the portion of the 2018 Order purporting to preempt ‘any state or local requirements that are inconsistent with [the Commission’s] deregulatory approach[,]’ see id. ¶ 194."

This letter therefore demands that [_______City / ______ County] cease and desist from:

  1. the processing of any and all sWTF applications,
  2. the placement of any new sWTF,
  3. the construction of any new sWTF, and
  4. the modification of any sWTF that would result in the addition of any antenna, the alteration of frequency, or in the increase in any Effective Radiated Power (ERP) from the sWTF

In connection with the above-ceased activities, you may wish to inform applicants of the DC Circuit Court Case 18-1129 requirement to comply with the above Rulings and NEPA. The following testimony from Attorney Edward B. Myers, an intervenor in Case 18-1129, was delivered at a November 19, 2019 hearing in Montgomery County, Maryland and again at a November 20, 2019 San Francisco hearing. The testimony was entered into the respective public records at each of these hearings:

"I am an attorney and was an intervenor in the DC Circuit Case 18-1129. I worked closely with the Natural Resources Defense Council on the briefs filed with the Court. My reading of the Court decision is summarized in the following:
“The Federal Communications Commission issued a rulemaking order on March 30, 2018 to expedite the deployment of Densified 4G/5G and other advanced wireless facilities (what the FCC called “small cell” facilities). The FCC’s order exempted all of these 4G/5G facilities from two kinds of previously required review: historic-preservation review under the National Historic Preservation Act (NHPA) and environmental review under the National Environmental Policy Act (NEPA).
“On August 9, 2019, the US Court of Appeals for the District of Columbia Circuit vacated the FCC’s rulemaking order. The legal effect of vacating the FCC’s rule necessarily means that the prior rule was reinstated: any actions taken on the basis of the vacated rule must be reconsidered under the terms of the prior rule."

“The prior rule required the FCC to apply NEPA to the construction of 4G/5G facilities. Consequently, it is not lawful that any such facility be constructed without prior NEPA review. While other actions of Congress and the FCC have attempted to circumscribe local authority over the construction of Densified 4G/5G facilities, in light of the Court’s decision, the localities are, nevertheless, within their rights to require the sponsors of Densified 4G/5G facilities to provide evidence that the FCC has conducted a NEPA review prior to approving any request for construction."

“Moreover, in as much as the Court’s decision vacated the FCC’s rule, the decision applies nationwide: its effect is not limited to the District of Columbia."

Attorney Ingrid Evans Testified at a Nov 20, 2019 San Francisco Board of Appeals Hearing:

"I would also like to add that this case that came up earlier, the United Keetowah vs the FCC case, which was recently decided by the DC Circuit, is very instrumental here, and I think it is going to change the game on this, and I think it is something to which the Board should pay attention. It is going to be required that these small cell towers and these wireless permits be required to do an Environmental Impact, and that is something that should be done. I would request that all of these permits be delayed until DPH has gotten back to you on the health effects and an environmental impact study has been done. Thank you."

Per this map, after the U.S. Supreme Court, the D.C. Circuit is generally considered the most prestigious of American courts. Its jurisdiction contains the U.S. Congress and many of the U.S. government agencies, and therefore it is the main appellate court for many issues of American administrative law and constitutional law. Its Rulings apply to the entire United States, as admitted at 3:34:55 in the public record video by Verizon Wireless Outside Counsel Paul Albritton at the San Francisco Board of Appeals on November 20, 2019: "My colleague, Melanie Sangupta, reminded me that NEPA does apply nationwide."

FCC’s overreach extends to its FCC RF-EMR exposure guideline, which is currently under litigation in US Courts of Appeals in the Ninth Circuit and in the DC Circuit. The FCC RF-EMR exposure guideline’s history is sordid and non-scientific. The current levels for Maximum Permissible Exposure of 10,000,000 µW/m² for frequencies 1,500 MHz and greater, stems from the 1950’s and was based on a behavioral disruption observed in test animals: Norwegian rats, squirrel monkeys, rhesus monkeys. Not biological markers, but the test animals’ unresponsiveness and inability to seek or eat food, after received massive levels of Radio-frequency Electromagnetic Microwave Radiation (RF-EMR) exposures.

In 1991, the IEEE established an RF-EMR Hazard Threshold. Unfortunately, the studies chosen to establish the limit, allegedly beneath which no human harm would occur, all concluded actual harm and, in some cases, the studies showed harm below the Hazard Threshold, positively disproving said Threshold.

In the 30 years since the setting of the FCC RF-EMR exposure guideline, many new peer-review, journal-published studies have concluded harm at much lower intensities, particularly where exposure occurs over a long period of time. With many more WTFs now operating in residential and near sensitive areas such as schools, hospitals and care facilities, vulnerable populations are being exposed to ever increasing RF-EMR intensities 24-7-365. Many people are likely incurring serious harm, even if they are unable to consciously attribute their impairments, illnesses and early deaths to these highly xenobiotic, pulse-modulated RF-EMR exposures.

Kindly remember that the federal 1996 Telecommunications Act (“1996-TCA”), at 47 U.S. Code § 332(c)(7)(B)(iv), recognizes the actual environmental effects of RF-EMR from wireless telecommunications facilities (“WTFs”), indicating by extension its recognition of actual health effects therefrom. Despite the existence of a few wrong case law “precedents” constituting encroachment of the third Branch of government upon the Second Branch, the 1996-Act unambiguously left the regulation of Effective Radiated Power from WTFs entirely within state and local officials’ authorities, obligating said officials to protect their residents against health effects with regard to all related activities from WTFs, including the placement, construction, modification and operations of WTFs.

In plain reading, 47 U.S. Code § 332(c)(7)(B)(iv):

“No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission’s regulations concerning such emissions.”

As you can clearly read here, the operations of all WTFs – remain, and have always been, under the regulatory authorities of state and local officials. “Operations”, which pertain to the RF-EMR transmissions of WTFs, and the transformation of electrical energy into such, were attempted to have been preempted by the authors of the original draft of TCA. However, Congress removed “operations” from the preemption clause at 47 U.S. Code § 332(c)(7)(B)(iv), positively leaving the regulation of operations within state and local authorities’ hands, for any and all reasons and grounds: health effects, environmental effects, agricultural effects, energy conservation, atmospheric effects, weather forecasting effects, astronomy effects, aesthetic effects, historic preservation, property values, aviation safety, local and state economies, and more.

Legislative purposes cannot be ignored, as they supersede specific laws and rules thereunder. The primary purpose of the U.S. Congress’s TCA “mobile services” is to “to promote the safety of life and property”. Congress set up FCC, for, among other purposes, “promoting safety of life and property”. Therefore, where you see actual and potential consequences of WTFs contrary to the said purposes, you are authorized to ensure that Congressional intent is rather fulfilled.

The legislative intent of 1996-TCA is further evidenced in its 1996 Conference Report, pp. 207-209:

"The conferees also intend that the phrase ‘unreasonably discriminate among providers of functionally equivalent services’ will provide localities with the flexibility to treat facilities that create different visual, aesthetic, or safety concerns differently to the extent permitted under generally applicable zoning requirements even if those facilities provide functionally equivalent services. For example, the conferees do not intend that if a State or local government grants a permit in a commercial district, it must also grant a permit for a competitor’s 50-foot tower in a residential district."

The U.S. Congress never intended 50-foot towers in residential areas. Such WTFs are clearly ultra vires: outside the law and beyond the intent of the underlying law, against which all FCC rules must be measured.

The U.S. Supreme Court has, of course, taken notice of FCC overreach. Attorney John Bergmayer, Legal Director at Public Knowledge, wrote on August 1, 2019:

“The FCC’s effort to dramatically expand its power at the expense of traditional state and local government prerogatives contradicts numerous federal and state courts that have read the statute and found it contains no such broad preemption authority. It also contradicts several decisions decided by the Supreme Court last term, notably Virginia Uranium, Inc. v. Warren (federal jurisdiction does not extend beyond bounds of comprehensive federal statute to intrude on related state authority) and Kisor v. Wilkie (statutory interpretation that fails to identify genuine ambiguity deserves no deference)”.

The preemption clause’s circumscribed language is unambiguous. Claims that “environment” means what is not environment, and that operations are preempted though not preempted, are irrational, deserving no more deference than a king without clothes. Public officials might question whether the wireless industry attorneys’ demand that they dutifully parrot “Our hands are tied [by federal law]” does not constitute anything more than cultish indoctrination. The 24-year repetition of this rumor does not substantiate it.

Certainly the U.S. Congress cannot override the very Constitution that establishes its own existence, nor can it override the state constitutions protected by the former’s Tenth Amendment and the People’s Ninth. Therefore, this letter finally calls for immediate cessation of such false pronouncement denying the actual, legal rights of individuals under officials’ oaths of office, and rather aim for the realization of the full rights of the individual in his or her home and community.

Kindly inform us of your intent to cease and desist from the above-cited activities.