This Works

This Works: How to Tame 4G/5G Wireless in Your City

 

Find the slides here.

 

The following ideas, from Attorney Mark Pollock, extend the original work by Attorney Harry Lehmann, which was instrumental in securing the Oct 15, 2017 veto of CA Senate Bill 649, the CA State Small Cell Deployment Bill:

  1. Link to Gov. Brown: Be Smart. Veto SB.649.
  2. Link to Attorney Harry Lehmann’s letters opposing SB.649
  3. Link to Attorney Harry Lehmann’s letter July 19, 2017 to CA Assembly Appropriations Committee re: Liabilities inherent in 4G/5G so-called "small" Wireless Telecommunications Facilities (sWTFs)
  • RF-EMR = pulsed, data-modulated, Radio-frequency Electromagnetic Microwave Radiation (at 600 MHz to 90,000 MHz, in the 4G+5G world)
  • EMFs = Electromagnetic Fields (which includes Electric Fields and Magnetic Fields, and conducted emissions/voltage transients/dirty electricity, which is a by-product of converting AC to DC via switched mode power supplies.)
  • Telecoms = providers of Wireline and Wireless Telecommunications (phone calls) and Information Services (Internet, audio/video streaming and gaming)
  • WTFs = Wireless Telecommunications Facilities of Any G

Selected from 2020-0526b-Newport-Beach-Appellate-Brief

PROBLEMS

By reference to the Certificate of Insurance List, Exhibit D on page 2 under Additional Coverages section V, Pollution Liability is marked "N/A". This means the insurance policy does not carry any pollution insurance. Electromagnetic Fields (EMF) are listed as a pollutant under the insurance policy exclusion of coverage. That means this will not EMF/RF generated illnesses. Below is exclusion language from General Liability Policies Of Zurich, Sun, Hartford and CFC Underwriting for Lloyd’s of London.

Zurich Community Care Liability Insurance

"We will not pay anything under this policy, claim expenses, in respect Of: Electromagnetic fields any liability nature directly or indirectly caused by, in connection with or contributed to by or arising from electromagnetic fields

SUN General Insurance

"This does not Cover any liability, ICN, cost or expense directly or indirectly arising out Of, resulting from, or contributed to by exposure to magnetic electric or electromagnetic fields or radiation however caused or generated."

The Hartford, "EXCLUSION – ELECTROMAGNETIC HAZARD"

"The following exclusion is added: This insurance does not apply to: ElectroMagnetic Hazard …"

CFC Underwriting LTD in London, the UK agent for Lloyd’s of London

"The Electromagnetic Fields Exclusion (Exclusion 32) is a General Insurance Exclusion and is applied across the market as standard. The of the exclusion is to exclude illnesses caused by continuous exposure to non-ionizing radiation exposure . . ."

The Certificate of Insurance List, Exhibit D, for AT&T shows "N/A" for Pollution Liability under paragraph V. In fact, EMFs are classified alongside smoke, chemicals, and asbestos. If a company wants insurance for EMF it must purchase additional Pollution Liability Coverage. Proof of Such coverage has not been provided to the City by New Cingular Wireless PCS, LLC, the Licensee.

There is, in the public record, no proof of financial responsibility or accounting to establish adequate liquidity of the licensee for the indemnification provisions of paragraph 28 of the Master License Agreement.

REMEDIES

The Commission should grant the and revoke the issued by the Zoning Administrator until:

a) Licensee provides Proof of Insurance with the Licensee as a named Insured;

b) Licensee provides proof of Pollution Liability Coverage for related exposures and

c) provides audited financials for purposes of indemnification.

Once the above compliance is established, and all three criteria have been provided, then the permit may be re-issued, but only if the name of the licensee or in the name of some other entity registered to do business in California which also has signed a Master Agreement by Title 3 section 2.49.080 of Newport Beach Municipal Code.

This document will explain:

  1. The absolute necessity for the City to obtain proper health insurance for Wireless Telecommunications Facilities ("WTFs") installations of any G (via RF-EMR exposures from 600 MHz to 90,000 MHz ) by providers of Wireless Telecommunications Services and Wireless Information Services — such as Verizon, AT&T, T-Mobile and their agents ("Big Wireless").

  2. The precise kind of insurance that must be obtained by Big Wireless — without compromise.

  3. Methods by which Big Wireless attempts to avoid giving the proper insurance in contracts with Cities, including hiding the actual contracting entities in an attempt to shield Verizon, AT&T, T-Mobile from the very liabilities that these companies warn their shareholders about: lawsuits for illnesses and injuries induced by RF-EMR- and/or EMFs.

  4. The truth about what legal results Big Wireless can actually achieve if they successfully sue a city for non-cooperation.

The following information applies to any City, whether or not the City has issued permits or executed Master License Agreements ("MLAs") with a Big Wireless company.

  1. The importance of obtaining the correct liability insurance for the City. Correct insurance covers all liabilities that can be generated by a WTF equipment installed in city or private property, such as wireless antennas and supporting ancillary equipment. The antennas emit pulsed, data-modulated, Radio-frequency Electromagnetic Microwave Radiation (RF-EMR), a scientifically-established health hazard. A city often will not reject installations of WTFs for reasons of health hazards, therefore, it is crucial to obtain complete third party insurance coverage for injury to the health of the City’s residents. General Liability Insurance may be required as part of a use permit or as a condition of any Master license agreement for deployment of WTF infrastructure.

  2. The precise kind of insurance that must be obtained without compromise. This type of health issuance is called “Pollution Insurance”. Most General Liability Insurance policies have a ‘pollution exclusion’ (under this exclusion, RF-EMR and EMFs are listed as pollutants). The city must demand that any permit of any kind that allows a Telecom to install WTFs in the city must include specific pollution coverage in the MLA or other licensing agreement. This insurance must be obtained from a licensed third party insurance company, not a self-insured indemnity substitute by the Telecom or any company listed on the License agreement. In the event that a master license or permit already exists between the City and a Big Wireless company, the City must examine the insurance provisions carefully and will find that Pollution insurance is routinely not covered. The city should demand a copy of the actual third party insurance policy relating to the permit, and inform the Big Wireless company that it is in breach of the permit until such time as proper Pollution insurance is obtained. All further installations will cease.

  3. Methods by which Telecoms attempt to avoid proper insurance in the contracts they negotiate with Cities: To protect the health and well-being of their citizens, and to avoid possible lawsuits by such citizens against the City and/or employees or City Council, the City must reject any offer of self-insurance or indemnity made by the installing company as not sufficient. Due to the well-established (thousands of studies) facts that RF-EMR/EMFs are hazards, as stated by the major insurance companies such as Lloyds and Swiss RE, they do not offer pollution insurance for RF-EMR/EMFs under any circumstances.

Quote from Lloyd’s agent, followed by AT&T exclusions to their user policy:

“The Electromagnetic Fields Exclusion (Exclusion 32) is a General Insurance Exclusion and is applied across the market as standard. The purpose of the exclusion is to exclude cover for illnesses caused by continuous long-term non-ionizing radiation exposure i.e. through mobile phone usage.”

CFC Underwriting LTD in London, the UK agent for Lloyd’s. Cell Phone Companies Define Electromagnetic Fields as a “Pollutant” and Will Not Cover Damages

AT&T Mobile Insurance Exclusions:

  • “Loss caused by or resulting from the discharge, dispersal, seepage, migration, release or escape of Pollutants”

  • “Pollutants” means: Any solid, liquid, gaseous, or thermal irritant or contaminant including smoke, vapor, soot, fumes, acid, alkalis, chemicals, artificially produced electric fields, magnetic field, electromagnetic field, sound waves, microwaves, and all artificially produced ionizing or non- ionizing radiation and waste. Waste includes materials to be recycled, reconditioned or reclaimed.” (pg. 4) AT &T Mobile Insurance Policy, February 2014.

Every cell phone company defines electromagnetic fields, microwaves, and all artificially produced non-ionizing radiation as “pollutants” and refuses to cover the phone for damages from such pollutants.

It is not only acceptable, but crucial, that the City deal with the health effects of RF-EMR/EMF pollution, and they may do so in discussion with the Big Wireless Co. when the subject is proper insurance. This is not the same as rejecting the installation for health effects alone, (47 US Code 332(c)(7)(B) of the Telecommunications Act of 1996 ), without dealing with pollution insurance.

The City can simply state it is:

   (a) protecting the health of the citizens from a known hazard, and

    (b) avoiding any liability from lawsuits that may develop from any parties who claim injury from RF-EMR/EMFs from Wireless infrastructure.

Since neither the City nor Big Wireless Cos. are able to obtain the proper Pollution Insurance from third-party companies, the Big Wireless Cos. will attempt to offer other forms of insurance with the pollution exclusion, or will offer indemnity (self-insurance). This indemnity will not be offered directly by the Verizon, AT&T, T-Mobile, but rather by another company which will be installing the equipment (a variety of LLCs, Limited partnerships or other business entities such which may be listed as “dba Verizon”, “dba AT&T” or dba "T-Mobile". The Big Wireless Cos. are well aware that RF-EMR/EMFs is a known hazard and admit this fact to their shareholders in annual reports and also state this in their own insurance exclusions to their customers. Therefore, third party insurance is the only way to insure proper handling of this issue.

4. The truth about what kind of legal results Telecoms can actually win if they successfully sue a city for non-cooperation.

Telecom lawyers will threaten to sue the City if they do not agree to the permit with the lack of pollution insurance, and will falsely assert that they will win large sums of money and legal fees from the City. Please find below the proof that a Telecom cannot collect any monetary reward or legal fees if they prevail in a court, only the permission to install the equipment under the license. It is doubtful that they will sue, because Pollution insurance for the city is part of any proper general liability insurance that all cities must demand, and this is a basic right of a city to protect itself from lawsuits from citizens claiming harm from the installations of Wireless Telecommunications Facilities (WTFs), which can literally bankrupt the City. Cities must stand up to any such legal threats as they essentially have no teeth.

  • A City Council may not be held liable for denying a permit: Government code § 818.2. Adoption or failure to adopt or enforce enactment

  • A public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law. However, where the City requires liability Insurance for a known risk (RF-EMR/EMF illness) the city can be sued for damages if it fails to require coverage for such risk. If the City ignores the fact that the policy has a pollution exclusion for EMF illness, it can be sued by an injured third party. Cal Govt. Code 815.6 and 815.2. See also 51 Cal App 3d 577 , and 18 Cal 3d 901

  • A Telecom Company cannot sue a City for Damages for violating the Telecommunications Act; all it may recover is an injunction to issue a permit.

Kay v. Lucky’s Two-Way Radio Corp. 504 F 3d 803 Ninth Circuit court of appeals, 2007:

“We hold that Kay’s three dismissed claims are barred by claim preclusion, that the City is immune from damages under California law, and that § 332 of the TCA does not provide a damages remedy.”

Not only will a Telecom company be unable to sue a City for money damages, even if they win a lawsuit against a City, and get an Order to issue a permit, they are not allowed to get Attorney fees.

PrimeCo Personal Communications, Ltd. Partnership v. City of Mequon, C.A.7 (Wis.) 2003, 352 F.3d 1147:

“Section 1983 remedies, including right to attorney fees for prevailing party under § 1988, are unavailable in suit to enforce rights granted by Telecommunications Act; Act’s conferral of right to sue is presumed to entitle successful plaintiff to usual remedies, which do not include attorney fees.”