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Fill Your Swimming Pool at the Gas Station?

There is a palpable public fear in some quarters of nascent 5G cell sites.  That public’s fear seems centered on radio frequency emissions, and are often based on Internet-spread claims of potential negative health impacts to adults, children, infants, animals, bees, trees, bushes, birds, insects…

I won’t debate the underlying question as to whether those public concerns are grounded in fact.  That’s not the point of this opinion essay.

Rather, I’m going to address a still more fundamental issue.

Specifically, the proper arena in which to fight the fight over RF safety.

Increasing, very vocal and concerned members of the public are showing up at Planning Commission/City Council/Board of Supervisor meetings demanding that local government officials deny essentially every wireless industry application to install a new or modify an existing cell site.  The public frequently argue to the local government officials that existing and proposed cell site transmissions are not proven to be safe, and must be denied.

The public testify before the government official that 5G transmissions will be worse that the 4G transmissions of today.

In the government jurisdictions the retain my law firm, once the public has spoken, the decision makers will turn to me asking about the testimony they’ve just received regarding fears of RF.

Most commonly, I’ll say something along the lines of:

‘The project as proposed has been reviewed by the City for compliance with the applicable FCC standards.  The project before you demonstrates planned compliance with those federal RF emissions standards.  As such, you are not permitted by law to consider much less act on the public testimony you just heard regarding RF concerns.  Your review of the project is regarding aesthetic and code compliance elements, not RF.’

That correct statement of the law is frequently a real trigger point for the public opposed to RF emissions from cell sites.

Side note… I am increasingly being accused by the public of being anti-public; of secretly working for the wireless industry; of receiving an industry-paid commission for every cell site I get pushed through; and other equally silly and untrue things.  This comes with the territory of being a subject matter attorney and expert witness working for public agencies. I’m used to it.

Let’s return and take a look at the key law.  The law that all state and local governments are required to follow.

The top law on point is found at 47 U.S.C. 332(c)(7)(B)(iv). In simple and plain words it 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.”

Essentially, if a proposed wireless project demonstrates planned compliance with the FCC rules, that’s all the site has to demonstrate to meet the RF requirements of the federal law.  At that point, state and local governments are barred from considering RF-related public testimony, regardless of whether for or against those emissions.

Another quick aside here…

There are some very confused people out!

They seem to love to repeated claim that the FCC rules are only applicable to the wireless carriers, not to the local governments.  If there’s any distinction, it’s without a difference. Go back and re-read the U.S. Code section just above, and good luck continuing to claim it’s a valid argument to deny impact on local governments.  It’s simply a hyper-technical but clearly wrong reading as to the actual impact and reach of the FCC rules under the Telecom Act.

Okay, let’s get back on track.

So why do I take what is clearly a very unpopular position regarding RF emissions compliance for sites that demonstrate compliance with the FCC rules?  Well, it goes back to a solemn promise I made many years ago.  A promise made by every attorney.

Every attorney, upon being admitted to practice law in California, takes an oath.  The oath I took was,

“I solemnly swear that I will support the Constitution of the United States and the Constitution of the State of California, and that I will faithfully discharge the duties of an attorney and counselor at law to the best of my knowledge and ability.”

With that frame, we’re coming to the explanation of the title of this post.

When a member of the public argues to a state or local government body that a FCC-compliant cell site project should be denied because of RF concerns, they are really asking that the local government knowingly and willingly violate federal laws and regulations (and on occasion some state law, too).  I believe in the oath I took, and what it means.  It means, in relevant part, that I can’t and won’t advocate that a state or local government act to ignore or violate federal law and FCC regulations due to concerns regarding RF just because the public assembled at a meeting demands that unlawful result.

That’s not how the law works, and not how public policy works, either.

The public is arguing their concerns in the wrong place at City Hall or the County Government Center.  Only Congress can change its “No State or local government or instrumentality thereof” rule in 47 U.S.C. 332(c)(7)(B)(iv).  Further, only the FCC can change its enabling rules in 47 CFR 1.1307 et seq.

Complaining to City Hall that the local officials should ‘take a stand to protect the public against 5G’ is asking those official to violate federal law, and likely the oaths they took upon entering their offices. It’s sort of like asking the gas station attendant (remember them?) to help you fill up your home swimming pool because your swimming pole holds liquids.  Huh?  Not really a workable idea, and potentially a really bad idea at that.

Wrong thing; wrong audience; wrong place.

If a member of the public wants to challenge the FCC RF emissions rules, they shouldn’t go to City Hall and demand a pending wireless project be denied because they’re concerned about what they’ve read or heard about 5G or RF in general.  City Hall is simply the wrong place for them to reasonably expect such a result.

You can write a letter to the five FCC Commissioners, but I think you’ll have more luck banging your head against a rather solid wall if you expect to get any real traction at the FCC.

One thing you can do is to express your concerns to three particular people who can make a difference. Pick up the phone—or write an email or letter—and let your Member of Congress and to your two federal Senators know how and why you feel the way you do.  They have the real power to prompt the changes you seek.

There’s one other venue to try and change the way the FCC repeatdly favors the wireless industry over the public.

My law firm is currently suing the FCC in the 9th Circuit Court of Appeals over the Commission’s small wireless facilities rules adopted in September 2018.  We are representing hundreds of west coast jurisdictions directly and through three state league associations.

A few weeks ago, at the request of the wireless industry, the FCC opened a comment period that is likely to lead to the FCC adopting even more rules further eroding local government and citizen controls in 6409(a) modifications of existing cell sites.  One of things the wireless industry wants is to prohibit local governments from requiring RF compliance information disclosures in those types of 6409(a) matters. My law firm has assembled a separate (but somewhat overlapping) coalition of local governments and state leagues to fight this latest industry attack on local rights.

Pick your battles carefully.  Then pick your battle fields equally carefully.  You can try and wage your fight on the wrong field of battle. Don’t expect to win when the real battle action is happening somewhere else.  Take your battle to the right field and use all of the real weapons at your disposal.  Only then should you reasonably expect to be closer to winning, or at least holding off the other side.

Those are my opinions.  What are yours?

Jonathan

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