Davis

1. Jan 28 Email to Davis City Council Members:

January 28, 2020
 

To City of Davis Council Members:

Mayor Brett Lee lee@cityofdavis.org
Mayor Pro Tempore Gloria Partida gpartida@cityofdavis.org
Councilmember Will Arnold warnold@cityofdavis.org
Councilmembe Dan Carson dcarson@cityofdavis.org
Councilmember Lucas Frerichs lucasf@cityofdavis.org

cc:
CityCouncilMembers@cityofdavis.org
City Clerk Zoe Mirabile aMirabile@cityofdavis.org
ClerkWeb clerkweb@cityofdavis.org

Dear City of Davis City Council and Mr Feeney,

[Request of City Clerk Mirabile : will you please add this email the City of Davis Public Record for the new Municipal Wireless Ordinance that the City of Davis City Council will be considering at its next meeting on January 28, 2020? Will you please print this email and put this into the paper file, as well as ensure that this email gets into the supplemental packet for the 1/28/2020 City Council meeting? Thank you for doing so.]

Mr Feeney, thank you for giving me five minutes of your time over the phone today. With two minutes left in our call, I asked you to please explain why it was in the City of Davis’ best interests or in the City of Davis’ residents’ best interests for the City of Davis to sign any master licensing agreements with Wireless cos. or their agents. You avoided answering that question, offered me some less-than-helpful generalities about the process and said you would try to get me copies of all the proposed Master Licensing Agreements that the City of Davis is considering signing.

What you sent, however, below, is not a Master Licensing Agreement.

Here is the problem that the City Council members need to carefully consider . . .

When the City of Davis is contemplating signing agreements with various entities or agents who you may falsely assume are actually Verizon, AT&T, Sprint or T-Mobile, you may be being hoodwinked. Yes, that’s right. The cities are being misled into signing agreements with various agents, shell companies and franchises with some business connection to Verizon, AT&T, Sprint or T-Mobile, but not to the large Big Wireless companies themselves. Have you ever stopped to ask yourself why things are structured in this complicated fashion? The answer is one word: liability.

Listen to Attorney Harry Lehmann explain this problem to the Thousand Oaks City Council on Jan 14, 2020:

      From https://scientists4wiredtech.com/thousandoaks/

Watch this video:
https://youtu.be/W6J6JLK4K78?t=1h36m31s, view 1:36:30 to 1:38:20 (just two minutes — watch it!)

City of Thousand Oaks Verizon Macro Tower Appeal — Jan 14, 2020

Harry Lehmann

"we don’t know which corporation actually made this application in the first instance . . . the application requires that the corporate identity be stated and the members of the board be stated"

The same thing applies to any master licensing agreements. Force the companies to identify themselves fully and legally right up front.

What you are seeing is a chess game played by the chess masters (Verizon, AT&T, Sprint and T-Mobile) and they are treating the cities as their pawns. They are hard at work transferring liabilities to the cities and its residents, so they can laugh their way to the bank, leaving you holding the bag.

Harry Lehmann is also the author of this seminal letter about liability –>
https://scientists4wiredtech.com/wp-content/uploads/2017/10/2017-0719-SB649-CA-Liability-Lehmann-to-Galehouse.pdf (read the first three pages, at least)

The Big Wireless Cos. know very well they are sitting on a time bomb of liability. The consolidated brain tumor cases that they have been delaying for 20+ years are finally reaching their final stages. The jury awards will reach into the $Billions for them knowingly creating, marketing and selling a hazardous, addictive product, without sufficient regard for product safety.All you need to do is read the 10k statements for each of these publicly traded-companies:

From https://ehtrust.org/key-issues/corporate-company-investor-warnings-annual-reports-10k-filings-cell-phone-radiation-risks/

“We may incur significant expenses defending such suits or government charges and may be required to pay amounts or otherwise change our operations in ways that could materially adversely affect our operations or financial results.”

I was expecting to be able to read before tonight’s important vote or continuance of this very controversial Wireless Ordinance that will either face a vote or a continuance based on the misleading information still present in the extant staff report that you refused to correct today.

These are very serious matters, ladies and gentelemen, not a game to be played. These are real livelihoods and lives at stake.

Read this page before you vote or continue the matter tonight —> https://scientists4wiredtech.com/sebastopol/#death

This page has excellent data that can predict what happens after ten years of exposure to a small cell at 2% of the FCC RF-EMR exposure guideline.

Please understand this data before you vote. If you need more time to understand this data, that’s fine . . . just continue the item and then study.

>>> Ashley Feeney wrote on 1/28/2020 3:57 PM:

Feeney: During our very brief conversation this afternoon, I attempted to note that we are using a Master Licensing Agreement as an implementation tool to memorialize City discretion to the greatest extent allowed under the law. This means that if the FCC order was overturned or there were changes to the order, we would be able to modify the agreement in accordance with the changes to the law (this would cover minor changes to full revocation). For example, if the FCC lowered the RF levels then the licensee would be required to modify their equipment or risk having them removed under public nuisance laws.

S4WT: You don’t have to wait for the FCC. The City of Davis has the police powers right now to limit the Effective Radiated Power from antennas installed at close proximity to where people live, eat, sleep and heal.

This is an idea to consider — add the following to the Wireless Ordinance:

"For any Close Proximity Microwave Radiation Antennas (CPMRA) Wireless Telecommunications Facility (WTF) that is

  • installed in the public rights-of-way, or
  • attached to any building , or
  • has antennas installed at a height that is lower than 100 feet off the ground,

. . . the applicant must install only antennas, radios and other supporting equipment that have no chance of exceeding a total of 0.1 Watt of effective radiated power from the face of the antenna shroud."

A cap of 40 milliWatts of ERP provides four main benefits:

  1. Provides coverage for Telecommunications service for about 1/2 mile from the source antenna (more than double the distance of the industry-claimed need of 1,000 feet down the block)

  2. Does not effectively prohibit Telecommunications service, making this regulation legally defensible to Wireless industry challenge

  3. Adds the "speed limits, seat belts and airbags" that residents need to be protect the quiet enjoyment of streets (part of the any city’s police powers over aesthetics).

  4. Complies with all FCC RF-EMR exposure guidelines.

Feeney: Further, if the FCC found that small cell technology at any level was a detriment to public health, the City would have the ability to revoke the license.

S4WT: Again, there is no need to wait for the FCC. The City of Davis has the power to protect the quiet enjoyment of streets today. Incommode includes negative health consequences, noise and safety. From https://scientists4wiredtech.com/2019-ca-supreme-court-decision-t-mobile-v-san-francisco/

"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."

Feeney: If the FCC found there was a change in law that no longer compelled jurisdictions to allow small cell facilities in the right-of-way, the City would no longer be required to issue permits and could revoke the existing leases at the expiration of the term.

S4WT: Write that into the Ordinance, not into the master licensing agreement. That is much better.

Feeney: Here is an excerpt from the City Council staff report regarding the master license agreement: THE MASTER LICENSE AGREEMENT All cities are facing the challenge of complying with the Report and Order, and there is no one size-fits all solution. Staff, together with legal counsel has developed a Master License Agreement (MLA) as a mechanism to respond to requests from wireless providers to attach to City-owned facilities in the public right-of-way as required by the new FCC rules until the City can amend its telecommunications ordinance. That said, the MLA will continue in effect and will become subject to any future ordinance or design standards adopted by the City. The MLA does not lock in design standards or City fees at the time of approval, so any future applications the company might submit would be subject the City’s regulations in place at that time. This is advisable because: (1) the City cannot readily predict how wireless technology might change in the future; (2) cost-based fees will certainly increase in the future; and (3) the entire Report and Order – including the cap on annual license fees – could be overturned if the lawsuit against the FCC is successful. Thus, the MLA provides that the annual license fees would automatically increase the annual license fee to $1,250 per installation in the event the relevant provisions of the Report and Order are no longer legally effective. The MLA does not involve the expenditure of City funds. As explained above, the fees that can be collected for small wireless facilities on City property have been essentially capped at a low “safe harbor” amount. Finally, the approval of the small wireless facilities themselves is non-discretionary, subject to compliance with limited objective standards. For these reasons, we believe that the MLA is an appropriate tool for the City to use in effort to condition and memorialize City discretion to the greatest extent allowed under the law.

S4WT: Make your Ordinance do the hard work and then no Master Licensing Agreement will be needed at all.

2. Jan 28 Rebuttal to Davis Vanguard Commentary:

Davis Wireless Ordinance: 500+ Page Staff Report and a Two-Hour Discussion

. . . because a big chunk of Davis residents’ future welfare depends on what is in this Wireless Ordinance . . . so . . . we shouldn’t accept any lazy analysis or false statements in the City of Davis staff report, yet both are there in spades.

Almost No Control? Think again. This time with all of your brain.

Adapted from a commentary by David Greenwald, Jan 28, 2020 | Original Davis Vanguard commentary here.

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For the last several months, people attending the local Davis city council and other meetings have been treated to what has ordinarily been thorough presentation of substantial written evidence in the public record — the opposite of an innocuous slide show.

The basic idea is that densified 4G and 5G Wireless Telecommunications Facilities (WTFs) installed within 1500 feet of homes, schools, parks and care facilities is “toxic and hazardous.”

The message is also that the densified 4G and 5G installation tactic is completely unneeded to close any significant gaps in carrier-specific wireless telecommunications coverage. The solution is simple: only allow installation of additional 4G/5G antennas in Davis by applying some simple requirements in our City’s Wireless Ordinance:
 

Wise Wireless Ordinance Principles for the City of Davis

  1. Is an additional WTF needed to close a significant gap in carrier-specific wireless telecommunications coverage? This can be established by simple no-cost, neutral third-party drive tests which can accurately measure signal strength on every street in Davis. No-cost because the ordinance can ensure that costs for such drive tests are paid for by the Wireless Carriers, while the City ensures that they hire neutral third parties that derive none of their income from Wireless carriers or their agents. If there is no need (no significant gap significant gap in carrier-specific wireless telecommunications coverage), then the application can and should simply be rejected, as the Ordinance should make this a needs-based decision.

  2. Has the City of Davis Wireless Ordinance properly regulated all three variables for each WTF — the horizontal offset, vertical offset and maximum power output (in Watts of Effective Radiated Power) to ensure that the City polices and preserves the quiet enjoyment of streets?

  3. Can the alleged significant gap in carrier-specific wireless telecommunications coverage be addressed by co-locating 4G or 5G antennas on existing macro towers? In many, many cases . . . YES — as advocated by Verizon Wireless itself:

Verizon: Millimeter Waves Go 3,000 Feet

The established science (over 20,000 studies of adverse impacts since the 1920’s) of the harms from pulsed, data-modulated, Radio-frequency Electromagnetic Microwave Radiation (RF-EMR) exposures is one of the most legitimate hazards that needs to be immediately addressed. The impending climate crisis is another imminent threat and another reason not to expand wireless coverage in our cities because sending data wirelessly from point A to point B is millions of times less-energy efficient than sending the same data by fiber optic cables/wires.

The letters and public comments that are pouring in are the result of Davis residents of educating themselves and knowing the score.

In one such letter:

“Davis residents’ privacy and safety are being attacked by the envisioned densified 4G and 5G Close Proximity Microwave Radiation Antennas (CPMRAs) proposed for Davis’ residential and school zones.

". . .Despite what you might have been told by various city attorneys, including Inder Kahlsa from Richards Watson Gershon, the Davis City Council Members’ hands are not tied. The City of Davis retains its dual-regulatory authority, under the notion of Cooperative Federalism that is laid out in the 1996 Telecommunciations Act.”

. . . “The City of Davis has a duty to regulate the operations of Wireless Telecommunications equipment to protect Davis residents’ inalienable rights to privacy and safety. This will require more robust zoning regulations, setbacks (both horizontal and vertical setbacks) from not only fire facilities (as required by CA AB.57), but also police facilities, elder care facilities, schools, parks and residences.”

Everyone of course has the right to enter substantial evidence of harms into the public record for this Wireless Ordinance, as the well-informed residents of Davis already have.

In December, many attended the Planning Commission the same night as the Wireless Communications Ordinance. The public commenters came one after another making demands, raising issues, and using the time that they are guaranteed by living and participating in a democratic society.

On Jan 28, 2020 we have a staff report and packet for the Wireless Communication Ordinance that is 557 pages long. Why? The length of the packet is due to correspondence. The length of the meeting will be due to public comment. Democracy in action.

One FCC Report and Order, FCC 18-133 is being challenged by over 200 cities in the Ninth Circuit Court of Appeals on Feb 10, 2020. This order has a good chance of being vacated by the Ninth Circuit judges due to FCC overreach, for reasons that are well-explained in this excellent intervenor brief.

The rogue FCC Order attempts to substantially limit the ability of the city to regulate small wireless facilities, much as the CA Bill, Senate Bill 649 attempted to do back in 2017, but Davis residents successfully lobbied against that Bill, and Governor Brown vetoed it.

FCC Order 18-133 attempts to limit the city to establishing only “aesthetic and locational requirements,” and these regulations are required to be “reasonable, objective, non-discriminatory, and published in advance.”

On December 24, the city received a “cease and desist letter” demanding that the City stop enforcing its city-wide policy governing small wireless facilities, due to Wireless Carriers’ non-compliance with the National Environmental Policy Act (NEPA). The letter is based on a recent court case No. 18-1129, United Keetoowah Band of Cherokee et al v. FCC.   This case partially struck down FCC Order 18-30 “that excused small cells from certain types of review, including federal environmental review under the National Environmental Policy Act.”

The letter claims that this decision now “prohibits the City from approving permit applications for small cell development, until the FCC issues a revised order containing new rules for NEPA review.” The attorney that wrote the intervenor brief in Case No.18-1129, Edward B. Myers agrees:

“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 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.”

So why does City Attorney Inder Khalsa, in her six-page memo not agree?

Khalsa writes:

”Contrary to the cease and desist demands made in the Letter, the decision in United Keetoowah does not affect the City’s obligation to comply with the Third Order and issue licenses to allow small cell facilities subject to the aesthetic and safety regulations in the existing and proposed policy. The City’s action to approve a wireless telecommunications ordinance or small cell policy, as well as its approval of individual facilities, are not subject to NEPA, nor could the City require NEPA compliance in the absence of federal agency involvement. The City can require CEQA compliance under state law, however, it cannot regulate the environmental impacts of RF emissions, which is the primary concern raised by the public.”

It seems that attorneys disagree. What a surprise . . .

 
In May in the New York Times, a very conflicted publication that is financially supported by Verizon, published a piece by William Broad that was widely debunked.

  • Link to The Miseducation of America on 5G: The New York Times Gets it Spectacularly Wrong, a Medium article that was preserved here.
  • Link to The ‘Race To 5G’ Is A Giant Pile Of Lobbyist Nonsense, a Techdirt article that was published yesterday.

An RT America segment, titled “A Dangerous ‘Experiment on Humanity,’” featured scientific experts that reported on peer-reviewed scientific literature that establish that RF-EMR exposures from densified 4G/5G WTFs would cause negative health consequences. The report links 4G/5G pulsed, data-modulated, Radio-frequency Electromagnetic Microwave Radiation (RF-EMR) exposures “to brain cancer, infertility, autism, heart tumors and Alzheimer’s disease.”

Scientists are reporting the exposures across the entire range of RF-EMR frequencies causes biological harm at Effective Radiated Power tens of thousands of times lower than those proposed in the WTF applications in the City of Davis. So-called "Small" WTFs only need 0.04 Watts of Effective Radiated Power (ERP) to provide telecommunications coverate ½ a mile down the street with five bars on a cell phone, yet many applications call for 1,000 to 7,000 Watts of ERP, or more.

We can limit the ERP from these "small" WTFs to only that which provides telecommunications coverage and therefore would preserve the quiet enjoyment of streets. The only trade off is that we would agree to receive Big Data (video, internet and gaming) via fiber optic cables directly to our homes. That sounds like a smart trade-off for Davis. Let’s add that to the Davis Wireless Ordinance.

3. Jan 26 Rebuttal to Davis Enterprise Article:

City of Davis Ordinance to Regulate Densified 4G/5G WTF Deployment

Adapted from an article by Anne Ternus-Bellamy, Jan 26, 2020 | Original Davis Enterprise article here.

Note: As a public service to the City Council Members and the residents of the City of Davis, CA, I have decided to re-write a mostly uninformed article by Anne Ternus-Bellamy, an author who, unfortunately, does not understand the basic science, technology, law or facts about this admittedly complicated topic.

Ms. Ternus-Bellamy relied on statements made by City of Davis staff who are similarly confused. Decisions that affect the well-being of Davis residents and their rights to the quiet enjoyment of their common streets and of the spaces in their private homes cannot be based on the misleading information in the original article or based on the misleading statements made by the City of Davis Staff or its City Attorney.

Please read this re-written article all the way through. It provides extremely important substantial evidence upon which the Davis City Council can reliably base its decisions. If you have any questions, please pose them by filling out the form at the bottom (in the footer) of this page and submitting it. I will respond promptly.

. . . Regulation of Wireless Telecommunications Facilities (WTFs) will be on the City Council Agenda on Tue Jan 28, 2020 at 7:00 pm in the Community Chambers at 23 Russell Blvd.

 
Opposition to densified 4G/5G wireless installations — and, specifically, the so-called small cell Wireless Telecommunications Facilities (WTFs) that are proposed to be deployed in large numbers to provide such densified 4G/5G wireless service — has been seen and heard around the country over the last two years. FCC Orders that have attempted to limit the ability of local government to regulate the service, have already lost in Federal court and will continue in Federal court on Feb 10, 2020 in the Ninth Circuit Court of Appeals. Both FCC Orders 18-111 and 18-133 — the no-moratorium order and the streamline small cell deployment order — are being challenged by 200+ cities, seeking to have them vacated. The cities should prevail, as one can reasonably project from reading this excellent 40-page brief.

Densified 4G/5G has been hailed by the Wireless industry as a game changer, increasing the rate of data transfer by 100 times or more, but this plan is controversial in the community. Many in the community have placed substantial evidence in the public record establishing that the significant increase in devices transmitting pulsed, data-modulated, Radio-frequency Electromagnetic Microwave Radiation (RF-EMR) in their neighborhoods will be hazardous, creating specific harms to safety, privacy and property values.

One way, to provide 4G/5G service is by installing a multitude of so-called "small cell" WTFs, mounted on utility poles along public thoroughfares. Another much less-intrusive way is to simply co-locate additional antennas on existing macro towers, as promoted by Verizon Wireless, itself:

Verizon: Millimeter Waves Go 3,000 Feet

Lowell McAdam, CEO of Verizon:

" We have now busted the myth that [5G frequencies] have to be line-of-sight — they do not. We busted the myth that foliage will shut [5G] down . . . that does not happen. And the 200 feet from a home? We are now designing the network for over 2,000 feet from transmitter to receiver . . . Those myths have disappeared."

Jason L., Verizon Field Engineer:

"[Verizon 5G] is really high frequency [28,000 MHz and 39,000 MHz], so everybody thinks it doesn’t go very far, but it’s a really big pipe and so that’s what allows you to gain the super fast speeds . . . We’re 3,000 feet away from our radio node . . . here even 3,000 feet away, we’re still getting 1,000 [Megabits per second] speeds."

The reason why no one — and I mean no one — wants to live near a Wireless Telecommunications Facility (WTF) of any G is explained by a professional Radio-Frequency Engineer in the public record in September, 2019 in Sonoma, CA. Lee Afflerbach explained that so-called "small" WTFs output as much power as macro towers, once one considers all three relevant variables:

  1. Vertical offset (how many feet off the ground the antennas are installed),
  2. Horizontal offset (how many feet away the antennas are from homes, schools parks and care facilities
  3. Maximum Effective Radiated Power (ERP) output from the face of the antenna shroud
    (calculated by A × B = C, where A is the maximum power output in Watts from the radios/amplifiers, B is the Antenna Gain and C is the resulting Watts ERP.

All three variables require effective local regulation, otherwise you have accomplished nothing.

Lee Afflerbach from CTC Technology and Energy says in his own words:

At 3:10:24 in the video —> https://youtu.be/HRYFXx7oNN4?t=3h10m24s

“many people are [wirelessly] streaming video and other services like that . . . each [small] cell is capable of almost putting out the same energy as one macro cell.”

At 3:13:22 in the video —> https://youtu.be/HRYFXx7oNN4?t=3h13m22s

". . . my staff has probably reviewed several hundred of these small cells in the last year . . . and they are all 4G . . . The radios that they are using are the exact same radios that are up on the
macro towers. It’s not a different technology . . . the same boxes as on macro towers. I see them all the time.”

Davis Community Has More Expertise Than Davis City Staff

Well-informed opponents in Davis have been vocal for many months, urging city planning commissioners and the City Council to take action to prevent the deployment of densified 4G/5G in residential zones because of the known factors that incommode the public and ruin the quiet enjoyment of streets in Davis, by unnecessarily transmitting excessive amounts of Effective Radiated Power — something over which the City of Davis has aesthetics police powers, per the CA Supreme Court judges’ Ruling on April 4, 2019 in T-Mobile v. San Francisco:

"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."

City staff wrongly says that the Federal Communications Commission has placed substantial new limitations on cities’ ability to regulate small wireless facilities and prohibits the city from regulating any wireless facilities based on radio frequency emissions or health impacts.

Unfortunately, this is not what the 1996-TCA or the Ninth Circuit case law says, as admitted by the City of Davis City Attorney, Inder Khalsa.

Title 47 U.S.C. § 332(c)(7)(B)(iv) actually says:

"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".

Two points are relevant:

  1. Zoning regulations can easily restrict WTFS to be installed in only industrial, commercial and mixed use zones; there is no reason to list residential zones on any preference list (see Petaluma Municipal Code).

  2. Davis City Attorney Inder Khalsa in her email on Oct 2, 2019 at 7:04 pm, admitted that she made a mistake in advising the City of Davis City Council in an 9/24/19 workshop: see http://mystreetmychoice.com/davis.html. . . in the video, this is what Khalsa said:

At 2:36:50 in the 9/24/18 video Inder Kahlsa said:

"The Federal Government has expressly stated that we [the City of Davis] cannot adopt regulations to mitigate the impact of environmental impacts or health impacts of telecommunications facilities — full stop. We are completely prohibited from taking health impacts into account in adopting our local regulations. And that has been the case since 1996."

Note, that environmental effects do not equal negative health consequences in the Ninth Circuit.

On 10/2/18 Inder Kahlsa, when challenged, admitted her mistakes

I did not find any Ninth Circuit or California cases similarly on point, but there are numerous cases from other circuits in which local decisions based on health impacts were found to violate the rule regarding environmental effects; including Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 495 (2d Cir. 1999), which stated:

“The statute uses the term ‘environmental effects’ to describe an impermissible basis for decision. Although one court has questioned whether ‘environmental effects’ and ‘health concerns’ are the same, see Iowa Wireless Servs., L.P. v. City of Moline, Illinois, 29 F.Supp.2d 915, 924 (C.D.Ill.1998), we believe that the terms are interchangeable and will use ‘health concerns’ to refer to the constituent testimony on the connection between [radio frequency emissions] and cancer and other health problems.” (Emphasis added.)

Although there are no cases in California or the Ninth circuit that are directly on point here, any attempt to regulate wireless facilities based on “health impacts” that attempts to argue that health impacts are different than environmental impacts would be sure to be challenged by the Telecom providers, with the City bearing the costs of litigation, likely to the 9th circuit and potentially beyond, with what appears to be a very low chance of success given the clear guidance in other circuits.

I remember telling the Council that environmental impacts include health impacts.

If I said “expressly,” that was a misstatement on my part, but the courts have concluded that environmental and health are synonymous for purposes of Section 332(c).

A strict reading of plain language of the 1996 Telecommunication Act ("1996-Act") is all that is needed here. and such a reading is required for preemption law. Such a reading clearly establishes that the current FCC regulations are not consistent with the underlying statute, the 1996-Act (see below). This means that these FCC regulations are actually ultra vires or, literally, outside the law. We have a conflict in the laws and regulations.

The Davis City Council, therefore, must follow the laws passed by our elected representatives and not follow the overreaching FCC regulations in this case — regulations that have a very good chance of being vacated by mid-August, 2020.

The Davis Wireless Ordinance Must Be Rewritten To Prepare for a Fork in the Road

Approving a resolution establishing permitting requirements and development standards for small cell wireless facilities cannot violate the intent of the 1996-TCA. Our existing laws and these new FCC regulations are currently in conflict.

One way to handle this is to prepare for both paths in the fork in the road that the City of Davis is currently facing, as explained here in two minutes —> https://youtu.be/-TvjqlAgH4U?t=5m49s and in the email that I placed in the City of Davis public record on October 1, 2019:

Ask the City of Davis to vote through two versions of its Municipal Wireless Code at the same time:

  • Version A — whatever a City thinks is consistent enough with the Aug and Sept 2018 FCC Orders (18-111 and 18-133) so they won’t get sued by the Wireless carriers, recognizing that the FCC’s "effective prohibition" attempt is considered irrational and has little chance of not getting vacated by the Ninth Circuit judges. The current 2005 Ninth Circuit Decision (https://scientists4wiredtech.com/metro-pcs-vs-san-francisco/) is the rule of law in CA: significant gap in {Carrier-specific] coverage [not specific to any frequency] and the least intrusive means to address the alleged gap. That means if the Carrier has coverage in any frequency, then there is no preemption of local law to deploy cell towers to transmit other additional frequencies. So, if 700 MHz coverage is present, then there is no gap. There are no rulings that say a Carrier has a right to close a gap in each and every desired frequency.
  • Version B — whatever a City would actually like for their Municipal Wireless Code (reflecting the City’s local values) if the Aug and Sept 2018 FCC Orders were vacated, which we expect to happen by mid-August, 2020.

The City of Davis could vote through both versions with a clause that says if the Ninth Circuit judges vacate FCC Orders 18-111 and 18-133, then Version B is in force and it applies retroactively to any applications received after the date of the vote that accepts both Versions A and B, above.

City of Davis Staff is recommending that the City Council on Tuesday amend the municipal code to bring the city’s wireless communications regulations into compliance with FCC regulations, which, if followed, would brings municipal code out of compliance with the legislative intent of the 1996-TCA, which was expressed by the Senators and Housemembers in the 1996-TCA Conference Report:

This page — https://scientists4wiredtech.com/compare — is one of three legs of the stool that establishes local control over the operations of Wireless Telecommunications Facilities (WTFs); the other two are the US House/Senate Conference Report for the 1996-Act and the stated purpose of the 1996-Act: to promote the safety of life and property.

The 1996-Act Conference Report states:

  1. "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 . . ."
  2. "If a request for placement of a personal wireless service facility involves a zoning variance or a public hearing or comment process, the time period for rendering a decision will be the usual period under such circumstances. It is not the intent of this provision to give preferential treatment to the personal wireless service industry in the processing of requests, or to subject their requests to any but the generally applicable time frames for zoning decision."

According to city staff, the actions “will ensure to the greatest extent possible that wireless facilities are located, designed, installed, constructed, maintained and operated in a manner that meets the aesthetic and public health and safety requirements of the city.”

Opposition Arguments

But that’s not likely to be good enough for opponents of 4G/5G densification who have established with substantial evidence in the public record that such densified 4G/5G WTFs will harm’s the community’s safety, privacy and property values by destroying the communities’ quiet enjoyment of streets.

About a dozen people addressed the City Council during public comment at the last council meeting, including Davis resident Judy Gonzales, who urged the council to postpone the deployment of densified 4G/5G in Davis. Said Gonzales: “There are already serious documented negative health consequences with the current levels of wireless radiation [on Davis’s streets]."

“We don’t know the percentage of people that are electromagnetically sensitive,” (EMS) she said, “but even if it is small, these people are important . . . It stands to reason that with dramatically increased amounts of electromagnetic radiation there will also be increases in the number of people becoming sick.”

Clearly, it is highly improbable that it was the intent of the legislators that passed the 1996-TCA — that in order to maximize the profits of private wireless companies, the population would have to sicken and die, which has been documented to occur when residents were exposed to pulsed, data-modulated, Radio-frequency Electromagnetic Microwave Radiation (RF-EMR) — at just 2% of the FCC RF-EMR exposure guideline in Sebastopol, CA —> https://scientists4wiredtech.com/sebastopol/#death

Others cited what they called the lack of studies on the safety of 4G/5G exposures, which, of course is inaccurate because we have more studies about the negative effects from RF-EMR exposures than we do for benzene, auto exhaust and even aspirin, combined. We have over 20,000 studies since 1927. This is established science.

“Imagine for a moment a world where the pharmaceutical industry released new drugs after brief in vitro testing, where cars were tested by computers but released without being test driven, and where the test flight for a new airplane was its maiden voyage with 360 passengers and a crew of 20,” said Davis resident Meredith Herman. “These things don’t happen because the pharmaceutical industry, the car industry, the airline industry is required to test their products before they release them on to the public. That’s not happening with densified 4G/5G. We will be part of a giant experiment.”

The real difference here, is that we already have the documented outcome of the experiment.

2019 DC Circuit Court of Appeals Rulings

Local opponents of densified 4G/5G have also cited a recent court ruling that they say gives the city the legal grounds to stop 4G/5G providers from installing equipment in the public right of way without further environmental review under the National Environmental Policy Act (NEPA).

In fact, they have sent a cease-and-desist letter demanding the city stop enforcing its policy governing wireless facilities based on that court case, Case No. 18-1129: United Keetoowah Band of Cherokee et al. v. Federal Communications Commission (FCC).

The case struck down an FCC order that exempted small cells from certain types of review, including federal environmental review under the National Environmental Policy Act and the rules reverted back to the older rules, which, in the words of FCC attorneys on Dec 12, 2019 means that every individual Wireless Telecommunications Facilities (WTF) application in the US must undergo NEPA review.

According to city staff, the cease-and-desist letter “claimed that the decision in United Keetoowah prohibits the city from approving permit applications for small cell development until the FCC issues a revised order containing new rules for NEPA review. According to Federal regulation, every WTF must have substantial evidence of NEPA review before the WTF can be constructed. In the words of Edward B. Myers the attorney from Montgomery County MD that wrote an intervenor brief for Case No. 18-1129:

“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 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.”

Point — Counter-Point

“However,” city staff said, “the United Keetoowah case is not applicable to the City of Davis for three reasons.”

. . . Really?

City Staff’s Points

Opponents’ Counter-Points
1. United Keetoowah was decided by the circuit court of appeals in Washington, D.C., and therefore does not apply in California, which is overseen by the Ninth U.S. Circuit Court of Appeals. 1.. Nice try, but not a chance. As you can see on this map, after the U.S. Supreme Court, the D.C. Circuit is usually considered the most prestigious of American courts because 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 outside counsel Paul Albritton at the San Francisco Board of Appeals on Nov 20, 2019.

“My colleague, Melanie Sangupta, reminded me that NEPA does apply nationwide.”

2. United Keetoowah affects small cell projects that are subject to federal environmental review under NEPA. “NEPA is a federal law that only applies to significant actions that are either taken by the federal government or funded with federal money; NEPA does not apply to city rights of way and, not being a federal agency, the city does not have the authority to require NEPA compliance from cellular providers.” Additionally, staff reported, the Telecommunications Act of 1996 specifically prohibits the city from regulating wireless facilities on the basis of the environmental effects of radio frequency emissions, although the city can regulate other environmental impacts of facilities under CEQA such as aesthetic impacts and impacts to habitat. 2. There are a lot of words in the left column, but few of them material to the issue at hand: every Wireless Carrier purchases a federal license to deploy its WTFs, making every WTF part of a federal undertaking. Many federal funds are used to pay for wireless infrastructure improvements. The NEPA issue is strictly federal, between the Wireless carrier and the FCC. The City of Davis can and should make it an application requirement for the applicant to place substantial written evidence in the public record of actual NEPA review. This federal requirement for NEPA review applies to every WTF in the US — according to Aaron Goldschmidt, Deputy Chief, Erica Rosenberg, Assistant Deputy Chief and Paul D’Ari, Senior Legal Counsel of the FCC Wireless Telecommunications Bureau, Competition & Infrastructure Policy Division.
3. United Keetoowah does not affect the separate FCC order that restricts the city’s ability to impose small cell regulations and delay small cell projects. The city’s small cell policy was developed to comply with this separate order, which remains in full force and effect after United Keetoowah.” That order is currently being challenged by a number of cities in the Ninth Circuit, however, “and the city is watching that case with interest. 3.The basis for the 60-day shot clocks, proposed in FCC Order 18-133, for Small Wireless facilities (sWTFs) was there was no need for environmental review of sWTFs. The Aug 9, 2019 United Keetoowah Ruling decimated this foundation because now environmental review is needed for every WTF. This ruling wipes out the foundation any sWTF 60-day shot clock. The City of Davis must prepare for the likely outcome that FCC 18-133 will be vacated by the Ninth Circuit Court of Appeals.
The bottom line for the city, staff says, is federal rules require cities to allow small wireless facilities on city-owned infrastructure in the public right-of-way, such as on streetlights and other existing towers. Federal law also specifically preempts the city’s ability to regulate wireless facilities, including small cell facilities, “based on concerns regarding (radio frequency), including health concerns,” city staff reported Even the Davis City attorney, Inder Khalsa concedes that this point is wrong — see above. The City of Davis maintains full zoning authority and full police powers over the public rights-of-way. SB.649 was vetoed, therefore, the City of Davis is not forced to allow small wireless facilities on public property. The City’s only constraint is that it cannot prohibit the provision of Wireless telecommunications service — evidence in the public record shows there is No Significant Gap in carrier-specific Wireless Telecommunications service, so no additional WTFs are needed anywhere in the City of Davis.
“All that the city can do is to require that such facilities meet the FCC requirements for (radio frequency) emissions,” according to city staff. Once again, the city staff is woefully misinformed. The City of Davis has regulatory power over the operations of WTFs, as explained here and here. The City of Davis is one third of the cooperative federalism that was set up by the 1996-TCA (as explained here) upheld by the US Supreme Court in CITY OF RANCHO PALOS VERDES et al. v. ABRAMS (2005) : “Congress initially considered a single national solution, namely a Federal Communications Commission wireless tower siting policy that would preempt state and local authority. Ibid.; see also H. R. Conf. Rep. No. 104-458, p. 207 (1996). But Congress ultimately rejected the national approach and substituted a system based on cooperative federalism. Id., at 207-208. — S4WT: View this Conference Report for the 1996 Telecommunications Act. State and local authorities would remain free to make siting decisions They would do so, however, subject to minimum federal standards [just “placement, construction and modification of personal wireless facilities” — both substantive and procedural — as well as federal judicial review.”

Therefore, based on its very inaccurate understanding of the facts and law at hand, City of Davis staff, inexplicably, is recommending that the city’s policy for small wireless facilities include the following provisions:

  • Applications should be required to include a radio frequency exposure compliance report that certifies that the proposed small wireless facility, as well as any collocated wireless facilities, will comply with applicable federal radio frequency exposure standards and exposure limits. That report would be required to be prepared and certified by a radio frequency engineer acceptable to the city.

  • No small wireless facility would be approved unless the city finds that the applicant has demonstrated that the proposed project will be in compliance with all applicable FCC regulations and guidelines for human exposure to radio frequency emissions.

  • Any approved project would be subject to a standard condition of approval that requires all small wireless facilities to be maintained in compliance at all times with all federal, state and local statutes, regulations, orders or other rules applicable to human exposure to radio frequency emissions.

  • All small wireless facilities would be required to be designed, constructed, operated and maintained in compliance with all generally applicable health and safety regulations, which includes without limitation all applicable regulations for human exposure to radio frequency emissions.

S4WT Comment: The four points, above, are essentially the same and miss the most important points:

  1. Compliance with the FCC RF-EMR exposure standards does not equate to safety. This has been proven with substantial evidence in the public record many times, including most recently in a 2018 Sebastopol, CA WTF analysis.
  2. Ensuring compliance with a meaningless FCC RF-EMR exposure guideline misses the point: the City of Davis can and must restrict the maximum levels of total Effective Radiated Power (ERP) to levels that will preserve the quiet enjoyment of streets.
  3. This City police power is completely independent of any FCC RF-EMR guideline and, if regulated properly, will have no chance of exceeding the FCC RF-EMR exposure guideline, so no such annual measurements will be needed.
  4. It is simplest and most effective to implement city police powers by adding two city-owned boxes to every WTF: a city-owned-and controlled fuse box and a city-owned-and controlled fiber-optic sharing box.

The FCC Order 18-30, seeking NEPA exemption for small cells was ruled unlawful for a number of solid reasons, chief among them are the following:

  1. The FCC failed to address that it was speeding densification “without completing its investigation of . . . health effects of low-intensity radiofrequency [microwave] radiation”

  2. The FCC did not adequately address the harms of deregulation

  3. The FCC did not justify its portrayal of those harms as negligible

  4. 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

  5. Such sWTFs are “crucially different from the consumer signal boosters and Wi-Fi routers to which the FCC compares them”

  6. “It is impossible on this record to credit the claim that [sWTF] deregulation will ‘leave little to no environmental footprint.’”

  7. 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.

In short, the DC Circuit Court of Appeals judges ruled that FCC Order 18-30’s

"deregulation of small cells is arbitrary and capricious because its public-interest analysis did not meet the standard of reasoned decision-making".

Will the Davis City Council allow the City of Davis staff to exhibit a similar lack of reasoned decision-making? There needs to be some accountability for analysis provided by the City of Davis staff. The quiet enjoyment of Davis’ streets is in the balance, as well as residents’ inalienable rights to privacy and safety as guaranteed by the CA Constitution. This is an important issue. The City Council must base its decision on the substantial evidence in the public record and the standard of reasoned decision-making dictates that the City staff’s false analysis must be rejected.

Recurring Issue

Tuesday’s meeting won’t be the first time the City Council has needed to balance the needs of the residents vs. the needs of billion dollar wireless and utility companies. Back in September 2018, the council faced opposition by Davis residents over the city’s new water meters which use radio frequency to needlessly transmit hourly water usage over a wireless network.

In response, the council allowed residents to opt out of the new meters and instead use meters that would be read manually. Those who chose the latter option would be billed an additional $37 per month to cover the city’s costs of sending out meter readers, which is essentially extortion at the rate of $444 per household per year.

Councilman Dan Carson voted against the opt-out that evening, saying his review of scientific research led him to conclude it wasn’t necessary. His colleagues agreed that the new meters were safe but were willing to create an opt-out, nonetheless. None of these City Council members, however, are scientists or qualified to deem any smart meter safe.

One of those who opposed the new water meters was Davis resident Ellen Cohen, who has spoken several times to the council in the last year about her substantial evidence about the harms from densified 4G/5G WTFs in residential zones. At the last council meeting, Cohen cited the D.C. circuit court ruling, which, she said, “has given cities a means to deny 4G/5G WTFs and maintain local control on the grounds that there’s been no NEPA review for impacts on the human environment.”

“For everyone’s sake, including your own, the time to act is now,” Cohen said.

City staff have disagreed with that assessment, though, and now the matter will be in the council’s hands.

Meanwhile, the Sacramento City Council turned to Professor Jerrold Bushberg, a clinical professor of radiology and radiation oncology at UC Davis, last year when substantial written evidence of harm to residents in Sacramento caused by the densified 4G/5G installation was entered into the public record.

Bushberg told that council his independent review had concluded that radio frequency radiation from the new 5G network would be compliant with the FCC RF guideline, yet compliance does not equal safety, which is easily illustrated by the five documented deaths and 14 microwave radiation illnesses of residents living within 250 to 500 feet of a cell tower in Sebastopol, CA for the last ten years.

The Davis City Council will take up the matter at its Tuesday meeting, which begins at 6 p.m. with a joint discussion between the council and Finance and Budget Commission focused on current commission activities and anticipated goals.