Subject: Legal challenge to FCC re:
Ref : small cell (5G) health effects by
Montgomery County, Maryland
County mounts legal
challenge against FCC on health effects of small cells
Nov 23, 2018
Following statements that the County could
not regulate small cell technology on the basis of potential negative health
effects, the Montgomery County Council last week approved the appointment of a
special counsel to lead the County’s legal fight on wireless infrastructure.
Montgomery County will be joining a coalition
of jurisdictions who are suing the Federal Communications Commission for a
recent order that places limits on local governments’ ability to regulate the
small cell antennas and towers.
For the past two years, public opposition
to the small cell antennas has been widespread, due in part to a concern among
some residents that the new technology could cause negative health effects
because of the radiation the antennas emit.
While members of the County Council,
including Council President Hans Riemer (D-at large), have argued that federal
law prohibits them from regulating the small cell antennas based on their
potential health effects, the County is now joining a lawsuit against the FCC
arguing the federal agency has failed to follow the Federal Administrative
Procedure Act.
“Federal law prohibits local governments
from regulating wireless infrastructure based on health effects and assigns
that responsibility exclusively to the FCC,” Riemer said in a statement. “While
there is no clear scientific consensus on the health effects of cell phones in
general or 5G in particular, we need the FCC to embrace this issue in an open
and transparent manner in order to address public concerns.”
To help lead the County through the
lawsuit, the County has retained the law firm Keller and Heckman, LLP, to
challenge the FCC’s order. According to County Attorney Marc Hansen, Keller and
Heckman attorney Albert Catalano, will argue the FCC failed to consider the
potential health effects of the small cell antennas, ignoring public concern
submitted to the federal agency via public comments.
“Under the Federal Communications Act and
the National Environmental Policy Act, the FCC was required, before issuing its
small cell order, to fairly consider the potential health effects of radio
frequency emissions from small cells that will be required for the nationwide
rollout of SG service,” Hansen wrote in a letter to Riemer.
For more than two years the County Council
has tried and failed to get a new zoning text amendment that would facilitate
the deployment of small cell antennas. Telecommunication companies argue that
the antennas, which would go on utility poles, are needed for 5G cellular
service, saying there is a growing demand for data for smartphone and tablet
users.
But for two years, the County Council has
met public opposition to its ZTAs, saying that changing County zoning laws to
facilitate the deployment of small cell antennas would take away citizens’
control to the placement of the antennas as well as make way for new technology
that could potentially cause cancer.
But as citizens’ concerns mounted, some
members of the County Council, led by Riemer, argued that 5G service was
inevitable and that the Council could do little in the face of federal law that
limits local governments’ ability to limit the small cell technology.
While Riemer said he was for changing
County zoning laws to accommodate the request of telecommunication companies
that wanted to deploy their small cell technology, he said he was doing it so
the County could keep local control in the face of federal pressure.
After the FCC issued its order in
September, Riemer said the County would explore its legal options to challenge
the FCC in court.
“Like other leaps in connectivity before
it, 5G promises enormous benefits to the residents and businesses in our
community,” Riemer said. “But we must balance those benefits against any risks
that the deployment of this infrastructure might pose.”
As of the latest attempt, the most recent
small cell ZTA that Riemer and County Executive Ike Leggett endorsed failed to
make it through the County Council by the Oct. 31 deadline. That means a
Council made up of four new members who say they are undecided on the issue, as
well as a new County Executive, Marc Elrich, will decide the fate of the issue.
Joel M. Moskowitz, Ph.D., Director
Center for Family and Community Health
School of Public Health
University of California, Berkeley
Electromagnetic Radiation Safety
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