Message to the City of Davis, CA
During the October 23 City of Davis Planning Commission meeting, which I attended, Commissioner Rutherford proposed that the City hold what I would call a community workshop to receive input from residents and whoever else the City would invite on the broad and complicated subject of cell antenna policy.
Did you know that the City of Elk Grove held such an event on November 28, 2018? It was a special City Council meeting. It was scheduled for 2-1/2 hours, I think, and lasted 4 hours. Every Council Member said they learned from the event (https://youtu.be/IV3-m-SpBcg?t=13419) and that it was time well spent.
Nov 28, 2018 Elk Grove, CA City Council Meeting Highlights:
The Elk Grove staff (City Attorney and Public Works) presented information. The City gave me 20 minutes to present information opposing the use of cell antennas in the city, especially in residential neighborhoods. I recommend that the City of Davis hold such a meeting – and that you learn from the mistakes that the City of Elk Grove made in its community workshop.
Scandal in Elk Grove, CA: Illicit AT&T Payment of $3,000
The City had hired a so called "expert", who unfortunately was NOT an expert in anything related to biology or biological or health effects of EMF. He got 20 minutes to speak. He had a major conflict of interest in that he had worked for AT&T in 2018 in Sacramento and San Francisco, among other cities. AT&T / Cingular had filed an application for a zoning code amendment.
Worse yet, I found out on January 31, 2019 in a meeting with our City Manager and City Attorney that AT&T had paid the City $3,000, which it did not have to pay according to our municipal code related to its application, and the City used that money to hire this "expert".
It is a scandal, more so because neither the "expert" nor the Mayor nor anybody on the City Council even mentioned during the community workshop that this "expert" has worked for AT&T. He should have mentioned it. He should have been required to mention it. The Mayor, who introduced him, should have mentioned it. Later, at least one Council Member told me that he considered the "expert’s" presentation to be tainted because he has this conflict of interest.
Now that you are aware of this, you are able to avoid making that same mistake. Please start by reading about the EMF Scientist Appeal.
EMF Scientist Appeal
We are scientists engaged in the study of biological and health effects of non-ionizing electromagnetic fields (EMF). Based upon peer-reviewed, published research, the ubiquitous and increasing exposure to EMF generated by electric and wireless devices [must be considered]. These include — but are not limited to — radiofrequency radiation (RFR) emitting devices, such as cellular and cordless phones and their base stations [cellular antennas and infrastructure], Wi-Fi, broadcast antennas, smart meters, and baby monitors as well as electric devices and infra-structures used in the delivery of electricity that generate extremely-low frequency electromagnetic field (ELF EMF).
. . . read the rest here.
So-Called "Expert" Testimony???
As I predicted to the City Council this "expert" gave a very biased and one-sided presentation on the subject of health effects of cell antenna radiation. He badly misrepresented both the overall body of scientific studies on the subject and the one item that he focused on, excluding all the other studies that have been published (thousands of them) and the many declarations and statements and appeals that the scientists who have had their studies published have issued to regulatory bodies all over the world, including the World Health Organization, and to the people of the world. He omitted all of them. One such appeal is the International EMF Scientist Appeal. Please read it here:
The so-called "expert" focused all of his attention on health effects on the Standard from IEEE called C95.1-2005. The IEEE has updated its standard this year to C95.1-2019, but they, unsurprisingly, did not change any of their recommendations or "safe" limits.
One big misrepresentation is that the "expert" failed to mention the Purpose and the Scope of the Standard, both of which are stated on page 1. The Purpose and the Scope of C95.1-2019 are the same; to protect against what IEEE calls "established adverse health effects" of RF radiation. He never mentioned that. IEEE has identified ONLY five health effects that it says are "established adverse health effects". This is pure nonsense and a major, deliberate omission by IEEE, whose purpose after all is "the advancement of technology."
The IEEE Standard C95.1-2019, which is the basis for the FCC guidelines, is only intended to protect against what they call "established adverse health effects". IEEE has a very narrow and subjective definition of that term, that includes 5 and only 5 health effects. Their list of THE 5 "established adverse health effects" does not include:
Common Symptoms of Electromagnetic Sensitivity (EMS)
|Headaches||Neurological problems||Bleeding from nose or ears|
|Tinnitus (ringing in the ears)||Altered brain development||Unexplained skin rashes|
|Sleeping Problems||Heart palpitations||Blood-brain Barrier Leaks|
|Concentration/Depression||Melatonin suppression||Chromosome aberrations|
|Memory problems||Hormone changes||Electromagnetic Sensitivity|
|Autism Spectrum Disorder||Sperm and ovary damage||Elevated cancer in children/adults|
The following quotations from the IEEE Standard C95.1-2019 show that it is only intended to protect against "established adverse health effects". The first two quotations are on page 1 of the Standard.
1.1 Scope. This standard specifies exposure criteria and limits to protect against established adverse health effects in humans associated with exposure to electric, magnetic, and electromagnetic fields in the frequency range of 0 Hz to 300 GHz.
1.2 Purpose. The purpose of this standard is to provide science-based exposure criteria to protect against established adverse health effects in humans associated with exposure to electric, magnetic, and electromagnetic fields; induced and contact currents; and contact voltages, over the frequency range of 0 Hz to 300 GHz."
IEEE has shortened its definition of "established adverse health effect". The new (2019) definition is:
"established adverse health effect:: An effect detrimental to the health of an individual due to exposure to an electric, magnetic, or electromagnetic field, or to induced or contact currents, with the following characteristics:
a) It is supported by the weight of the evidence of that effect in studies published in the scientific literature.
b) The effect has been demonstrated by independent laboratories.
c) There is consensus in the scientific community that the effect occurs for the specified exposure conditions.
See also: adverse health effect
The current version identifies five such effects, not in the definition, of that term, but on page 15:
The following short-term reactions associated with electrostimulation at frequencies below 100 kHz for CW exposures have been established:
aversive or painful stimulation of sensory or motor neurons;
muscle excitation that can lead to injury while performing potentially hazardous activities;
excitation of neurons or direct alteration of synaptic activity within the brain;
cardiac excitation; and
adverse health effects associated with induced potentials or forces on rapidly moving charges within the body, such as in blood flow.
Note: By "CW exposures" they mean "continuous-wave (CW) fields".
Obvious Shortcomings in the IEEE RF-EMR Exposure Standard
In other words, according to the IEEE if a person is exposed to cell antenna electromagnetic radiation (or from any other source) and he or she develops one or more of the health effects I listed at the top of this section but does not develop any of their five “established adverse health effects” it is fine. It is not a problem as far as the IEEE is concerned. You could get cancer, alzheimer’s disease or heart arrhythmias from exposures to pulsed, data-modulated, Radio-frequency Electromagnetic Microwave Radiation (RF-EMR) — and die, but IEEE does not consider that a problem. The IEEE considers that their Standard has done its job and that their Standard has succeeded!
Why? Look at the Purpose and the Scope of the Standard. It was not intended to protect against cancer, alzheimer’s disease or heart arrhythmias and more. It was ONLY intended to protect against their list of 5 “established adverse health effects.”
The FCC maximum permissible exposure guidelines are a direct copy of the IEEE Standard. That means that all the flaws and huge errors in the Standard are also flaws and errors in the FCC RF-EMR exposure guidelines. When a person, whether an attorney or city council member or industry representative, claims that you will be “safe” as long as the equipment complies with the FCC RF-EMR exposure limits that is a false statement. Either they do not know any better or they are lying to you. Call them on that immediately and demand an explanation that takes this whole discussion into account. They will not be able to provide it to you.
Elk Grove City Council Came Up Short, As Well
At the Elk Grove community workshop, there were many public comments and finally a discussion by the City Council in which it gave very broad and vague direction to the staff as to what it wanted in a new cell antenna ordinance. The Council failed to address ANY of the many important issues and details. Nor did the Council ever address them. Rather, it voted on the staff’s proposed zoning code amendment on the FIRST night it met to discuss it. It was also apparent at that meeting, on August 28, 2019, that the Council Members had not read the staff report cover to cover OR the recommendations that community members had made on the proposed zoning code amendment. Overall the City did a couple of things right and omitted many things it should have included. The most significant thing the City Council did right was to prohibit cell antennas immediately adjacent to or across the street from a residential front yard.
The single biggest mistake the City of Elk Grove made, both its Planning Commission and its City Council was to believe, without questioning or exploring the issue, that the City could not do anything to protect the health and safety of residents from cell antenna electromagnetic radiation, which is hazardous to human health. Our City Attorney, Jon Hobbs, did not identify any case law to support his position, nor did our Planning Commission or City Council ask him to. The Telecommunications Act of 1996 has been US Federal law for 23 years. There have been countless federal court cases and opinions regarding the regulatory powers of a city in light of the Act, including in the U.S. Court of Appeals for the Ninth Circuit.
What the City of Davis Can Do
Please note that ANY action the City of Davis takes to limit the number of cell antennas or their proximity to homes in Davis will have the effect of limiting the environmental and health effects of cell antenna radiation. For example, the City can choose to do any and all of these things (which have been done by other cities in CA):
Allow cell antennas only in commercial, industrial and mixed used zones — not in residential zones
Require a minimum setback distance of 1,500 feet between any two Wireless Telecommunications Facilities (WTFs)
Prohibit cell antennas being placed immediately adjacent to or across the street from a residential front yard.
Set a minimum distance of 500 feet between any WTF and any residence in any zone
You have the power to do all of those things. None of these actions involve regulating cell antennas "on the basis of the environmental effects of radio frequency emissions", which is only a partial federal preemption of city regulatory authority in the 1996 Telecommunications Act ("1996-TCA").
During my public comments to the Planning Commission of the City of Davis on October 23, the question of a city’s regulatory power over cell antennas was discussed as one of the most misrepresented and misunderstood legal issues in the 1996-TCA. The Telecommunications companies have consistently misrepresented this law to cities all across California and the entire U.S.
Big Wireless has in many cases succeeded in deceiving and misleading many cities into believing that the cities do not have the power to do anything to protect residents from the adverse health effects of cell antenna radiation, which is false.
Please complete your due diligence on this issue. Please ask for specific and applicable case law, ask the cities that have already amended their zoning codes to protect their residents from RF-EMR exposures, and fully explore the City’s regulatory power. Your own City attorney, Inder Khalsa, has admitted that there are no Ninth Circuit decisions that equated "environmental effects" (the term used in the 1996-TCA Section 704, Siting Clause) with "negative health consequences" (the term that the CA Supreme Court judges added to their definition of "incommode" in their April 4, 2019 Ruling in T-Mobile v. San Francisco).
Good Questions to Ask
1. What does it mean to regulate cell antennas "on the basis of the environmental effects of radio frequency emissions"?
That is a deliberately vague and ambiguous statement. It does NOT mean, despite what AT&T and Verizon tell you, that the City cannot do anything to protect residents’ health. Find out what this really means including the legal basis, meaning the case law. ** Please do not accept the off-the-cuff interpretation of anyone, including your own City Attorney.** There are 23 years of case law on this and NONE of it, that I am aware of, says the City lacks the power to regulate in ways that have the effect of limiting the environmental and health effects of RF emissions from cell antennas.
What you should know about the federal preemption in the 1996-TCA was purposefully very narrow — only affecting decisions about the placement, construction and modification of personal wireless facilities . Nothing more. This means that the regulation of the operations of personal wireless facilities is squarely on the shoulders of local governments. Please read these five sources very carefully:
The 1996-TCA provides only a partial federal preemption of the City’s regulatory power over cell antennas. Please be aware of 47 U.S.C. 332 (c)(7)(A) which says,
‘‘(7) PRESERVATION OF LOCAL ZONING AUTHORITY. — ‘‘(A) GENERAL AUTHORITY.—Except as provided in this paragraph, nothing in this Act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.
A key Ninth Circuit Court of Appeals ruling was MetroPCS, Inc. v. City & County of San Francisco (9th Cir. 2005) 400 F.3d 715, (which interpreted the TCA to say that a City has the power to require applications to demonstrate that a given proposed cell antenna should only be allowed if it closes a "significant gap in coverage" [not capacity] and it must do so using the "least intrusive means". Please note that the FCC’s weak attempt in the FCC’s 2018 Order, FCC 18-133, to sweep away this Ninth Circuit decision by fiat with the stroke of their pen may very well be vacated by the Ninth Circuit in the next six months.
2. What can the City do to regulate in ways that will limit the number of cell antennas or their proximity to homes?
Your staff, especially your City Attorney, should focus on what the City can do. Your staff should, at bare minimum, investigate closely the ordinances passed by the cities of Petaluma, Los Altos, Mill Valley, Sonoma, Calabasas, and others that have created a new cell antenna policies with the purpose of protecting residents’ from a known and admitted pollutant ( admitted by the wireless companies, in their own insurance documents for their customers) . Importantly, the City of Davis can regulate cell antennas without needing to identify the "basis" of a such regulation, as long as it is objective and written.
ANY action the City takes to limit the number of cell antennas or their proximity to homes in Davis will have the effect of limiting the environmental and health effects of cell antenna radiation.
The City can set aesthetic requirements, even according to the FCC Order 18-133. (Paragraph 88, page 45), Depending on what those aesthetics requirements are, they may limit the number of cell antennas and/or their proximity to homes.
The City can regulate the maximum Effective Radiated Power of antennas close to residences
On such objective written regulation could be the following:
For any 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 Wireless Carrier must install only antennas, radios and other supporting equipment that have no chance of exceeding a total of X milliwatts of Effective Radiated Power (ERP) from all of the equipment operating at or connected to this WTF.
. . . where X is defined by the City’s due diligence that defines the minimum ERP needed to provide three to five bars on a cell phone for telecommunications service at 2,500 feet away from the antenna. Note that this is aligned with Verizon’s stated goals in a May, 2018 CNBC interview and Verizon marketing video https://youtu.be/FwAsr1pC13Q:
Lowell McAdam, CEO of Verizon:
"When [Verizon] went out in these 11 [5G test] markets, we tested for well over a year, so we could see every part of foliage and every storm that went through. 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, which has a huge impact on our capital need going forward. 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. the cool thing about this is that we did not move the radio node. It’s pointing down to serve the customers in that area " . . . here even 3,000 feet away, we’re still getting 1,000 [Megabits per second] speeds . . . So now we’ve driven about 1/3 of a mile away [1,760 feet] from the radio node. we are still getting very good speeds even though we have foliage in between [800 Megabits per second]."
The City has broad regulatory power, which the 1996-TCA specifically does not touch. That can be the basis of any city regulation of cell antennas that provides the basic "speed-limits, seatbelts and airbags"-like regulations for Wireless Telecommunications Facilities (WTFs) that are so much needed in Davis. The simple requirement of a permit (of any kind) before a company can install and operate a cell antenna can limit the number of cell antennas, limit their proximity to homes and limit their maximum Effective Radiatated Power. It is obviously well within a city’s regulatory power.
The City of Davis can regulate the operation of cell antennas and such regulation can go a long way to protecting residents from health effects of cell antenna radiation — even if you do not state this as the basis for your regulations.