Exhibit E: Responses to May 1, 2020 Email Letter
. . . from San Francisco CIO, Linda J. Gerull
Comments responsive to the May 1 email are prefaced, below, with the phrase Mr. G Comments:
Ms. Gerull:
Dear Mr. W[redacted] and Mr. G[redacted]:
Mayor Breed has referred your request for a meeting to discuss the installation of Wireless Telecommunications Facilities (WTF) to me. I serve the City as the Executive Director of the Department of Technology and as the City Chief Information Officer (CIO). I would be happy to meet with you virtually to discuss your concerns.
Mr. G Comment:
We have not communicated concerns. We have communicated — and placed in the San Francisco Public record — to Mayor Breed and to the Management of the SF-PUC, SF-DPH and SF-DPW solely matters of substance, fact and law. Please do not mischaracterize our communications as mere "concerns". Thank you for doing so, going forward.
Many of the words that I read in the blue text, below, seem not to be your words, Ms. Gerull, but those of City Attorney William Sanders. I recognize the old, tired arguments that simply no longer hold water, given the 2019 Rulings in the DC Circuit Courts of Appeal: Case No. 18-1129 Keetowah et al. v. FCC and Case No. 18-1051 Mozilla et al. v FCC.
Please also note that other FCC Orders (18-111, 18-133 and 19-126) are under active litigation in the Ninth Circuit (18-111 and 18-1333) and the DC Circuit Court (19-126). The FCC has been a serial loser in the Federal Courts of Appeal throughout 2019 and 2020. We expect this trend to continue.
Ms. Gerull:
The City and County of San Francisco can and does ensure that all wireless telecommunications facilities (WTFs) meet federal guidelines for radio frequency (RF) exposure.
Mr. G Comment:
The last sentence in blue, above, unfortunately, is insufficient and irrelevant to address our request — to power off all so-called "small" Wireless Telecommunications Facilities (sWTFs) in San Francisco during the COVID-19 crisis to maximally protect the residents of San Francisco, by not suppressing the immune systems of its residents, which is a widely-known biological effect of pulsed, data-modulated, Radio-frequency Electromagnetic Microwave Radiation (RF-EMR) exposures, as established in over 12,000 peer-reviewed scientific studies.
I am not a medical doctor and neither is anyone on the distribution list, other than Drs. Colfax and Aragon from the SF-DPH. As you can read at these two links:
. . . on July 3, 2020, the SF-DPH was tasked by the SF Board of Appeals to update the June 14, 2010 Memo by Dr. Rajiv Bhatia re: Health Effects and Regulation of Wireless Communications Networks.
Nine Months Later, the SF Board of Appeals and the Public have seen nothing . . . what is going on? We can get no response from the SF-DPH.
Only a medical doctor — not any applicant, attorney, engineer, physicist or policy professional — has the expertise to make any statements about the safety of the intensity, peak energy, average energy, pulsation, modulation, phase, coherence or heterodyning of pulsed, data-modulated, Radio-frequency Electromagnetic Microwave Radiation (RF-EMR) exposures. We are awaiting Dr. Aragon’s review of the large black binder of peer-reviewed scientific studies provided by Cherly Lea Hogan as part of her appeal to not construct the sWTF in front of her home at 3535 Sacramento Street. Dr. Aragon was given many other peer-reviewed studies to review — by myself and others, as well. These peer-reviewed, scientific studies are in the San Francisco public record
Ms. Gerull:
When applying for a permit, applicants must have engineers certify that their WTF installations will not exceed RF limits alone or cumulatively with other facilities. After installation, the permittees must certify that the RF emission meet federal RF limits. All of this occurred at the site at 3535 Sacramento Street identified in the email and attached is the Report.
Mr. G Comment:
What you wrote above in blue, Ms. Gerull, is not true for the site at 3535 Sacramento Street or for most other so-called "small" Wireless Telecommunications Facilities (sWTFs) installed in San Francisco. The so-called "objective" engineers hired by the applicants have not sufficiently completed these specified actions nor placed any verified or verifiable data about RF-EMR exposures into the public record. These material omissions are clearly pointed out by two successful sWTF appeals. These appeals were successful because the applicants pulled their applications and did not construct the proposed sWTFs.
In fact, these two appeals also establish that the City of San Francisco’s Dept of Public Health is not even equipped with sufficient RF-EMR detection equipment or training to adequately provide data that can accurately characterize the actual RF-EMR exposure environment in San Francisco either pre- or post-installation of sWTFs.
- Appeal for sWTF at 2298 Pacific Ave., SF, CA → https://scientists4wiredtech.com/sanfrancisco/sf-appeal-18wr-0296/
- Appeal for sWTF at 1650 Baker St., SF, CA → https://scientists4wiredtech.com/sanfrancisco/sf-appeal-16wr-0123/
What we are facing in San Francisco, unfortunately, is the "blind leading the blind" because the San Francisco is not listening to independent RF-EMR exposure experts such as Professor Trevor Marshall, a PhD who presented to Dr. Aragon on Oct 22, 2019.
Ms. Gerull:
State and local governments are preempted from regulating wireless facilities based on radio frequency emissions, as long as those facilities meet federal standards.
Mr. G Comment:
Please understand that we are not requesting that the City San Francisco "regulate wireless facilities based on radio frequency emissions." Instead, we are requesting that that the City San Francisco regulate the operations of sWTFs by capping the maximum Effective Radiated Power (ERP) from the face of the antenna shrounds, in order to preserve the Quiet Enjoyment of Streets (QES) — i.e. to cap a sWTF’s ERP to a level that is sufficient to provide Telecommunications Service — and no higher, by regulating all three variables as an inextricably-connected set: Vertical • Horizontal • Power.
Next, please read carefully the April 2019 CA Supreme Court Ruling in T-Mobile v. San Francisco here → https://scientists4wiredtech.com/2019-ca-supreme-court-decision-t-mobile-v-san-francisco/
It is within the City’s police powers over the public rights-of-way to regulate the operations of so-called "small" Wireless Telecommunications Facilities (sWTFs) in order to protect the Quiet Enjoyment of Streets (QES) by ensuring the following is adequately policed.
Quoting the words of the CA Supreme Court justices from this Ruling:
". . . 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".
Clearly, the CA Supreme Court justices recognize the City of San Francisco has both the duty and obligation under its police powers of the public rights-of-way to address noise, negative health consequences and safety harms caused by the construction and operation of so-called "small" Wireless Telecommunications Facilities (sWTFs) near residents’ homes — regardless of any words that Mr. Sanders has told you to quote from the 1996 Telecommunications Act (1996-TCA).
The proposed — and current — levels of Effective Radiated Power (ERP) emitting from many of the sWTF antennas installed as part of San Francisco’s sWTFs are excessive for the stated purpose — to provide Telecommunications Service to a "cell" that is around ¼ to ½ a mile radius from the sWTF. The City can and must lower the ERP levels to mitigate noise, negative health consequences and safety harms sufficiently to preserve the Quiet Enjoyment of Streets. Doing so will not prohibit Wireless Telecommunications Service and will mitigate the excessive noise (electromagnetic vibrational energy sprayed through the air, regardless of whether or not it is audible by human ears) that is ruining San Franciscans’ Quiet Enjoyment of Streets.
Ms. Gerull:
Specifically, the Telecommunications Act of 1996, prohibits state and local regulation over the placement, construction, and modification of FCC-compliant personal wireless service facilities based on environmental effect of RF emissions.
Mr. G Comment:
Clearly, we have made no request to regulate the placement, construction, and modification of personal wireless service facilities "based on the environmental effects of RF Emissions." We are reasonable requesting that the City of San Francisco use its police powers over the public rights-of-way to regulate the operations of personal wireless service facilities which was never preempted from local control by the 1996-TCA, which was the clear legislative intent of the 1996-TCA, which set up a cooperative federalism, as explained in the 1996-TCA Conference Report.
Ms. Gerull:
In December 2019, the FCC issued an order where it declined to modify its existing RF exposure guidelines after consulting with the FDA and other expert federal agencies. (FCC 19-126, paragraphs 10 & 11).
Mr. G Comment:
We are well aware of the FCC’s arbitrary and capricious efforts to not use reasoned decision-making or adequately address the evidence in the public record in their recommendation to cancel FCC Order 13-84. FCC Order 19-126 is being challenged in the DC Circuit right now by Environmental Health Trust et al. and by Children’s Health Defense et al..
Just because the FCC types something into an Order, it does not make their proposed rules or regulations a law with the same force as its underlying statute — the 1996-TCA. Indeed, every FCC Order and Rule must be consistent with the legislative intent of the 1996-TCA, which is clearly stated here — H. R. Conf. Rep. No. 104-458, p. 207 (1996) — and affirmed by the US Supreme Court here — US Supreme Court (2005) CITY OF RANCHO PALOS VERDES et al. v. ABRAMS (2005) No. 03-1601."
Conference Report for 1996-TCA:
"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."
2005 US Supreme Court Ruling in City of Rancho Palos Verdes v Abrams
"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](https://scientists4wiredtech.com/ legislation/1996-telecommunications-act-conference-report/), p. 207 (1996). But Congress ultimately rejected the national approach and substituted a system based on cooperative federalism. Id., at 207-208. State and local authorities would remain free to make siting decisions They would do so, however, subject to minimum federal standards — both substantive and procedural — as well as federal judicial review."
I don’t understand how the City of San Francisco is apparently unaware of this 2005 Supreme Court Ruling and the CA Constitution itself . . .
California Constitution: ARTICLE I DECLARATION OF RIGHTS
"SECTION 1. All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy."
. . . in its unwillingness to pass local laws that would preserve the Quiet Enjoyment of streets by limiting sWTF ERP to levels that will provide Telecommunications Service and no higher.
Such QES protection could be achieved by adding the following text to SF-DPW Article 25:
"For any so-called "small" Wireless Telecommunications Facility (sWTF) 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 from 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 from all RF-EMR frequencies."
Will you please tell us why the City of San Francisco is not taking advantage of such an opportunity to fully comply with the 1996-TCA, the Americans with Disabilities Act and the Fair Housing Act, while taking full advantage of the police powers granted to the City by the 2019 T-Mobile v San Francisco Ruling?
Ms. Gerull:
Within the constraints of these preemptive laws, the City ensures that all WTFs meet Federal guidelines, and we have no basis for halting the operation of these WTFs.
Mr. G Comment:
We clearly cannot accept your conclusion, based on the substantive law that we have quoted, above. What we are requesting is within the City’s local police powers over the public rights-of-way — as supported by case law in the US Supreme Court, the CA Supreme Court and the legislative intent of the underlying statute itself, the 1996-TCA.