Constitution and Law

 FCC  Cases 

When your town says their hands are tied and they must go along with the FCC, cite this information and cases below. 

Telecommunications ACT of 1996 does NOT pre-empt operations – that was very clearly documented to allow local towns to dictate what is turned on or off.  They are in violation of Federal law if either PURA or CT Siting restrict the town's people to assert their rights to a safe environment . 

 

Current Court Cases support the people’s efforts to say NO based on health, aesthetics,  environmental and even historical preservation claims:

  1. August 9, 2019, case 18-1129 in the case United Keetoowah Band of Cherokee Indians in Oklahoma v. FCC, No. 18-1129 (D.C. Cir. 2019) (United States Court of Appeals for the District of Columbia Circuit) found FCC incomplete and vacated the FCC order 18-30’s deregulation of wireless telecommunications facilities. The judge stated, “FCC failed to justify its determination that it is not in the public interest to require review of WTF deployment and ruled that “the order’s deregulation of WTF is arbitrary and capricious. “ Therefore NEPA is required and the CT Siting has failed to execute on this application and all the others in EASTON.

  1. Oct 1, 2019 the DC Circuit Court of Appeals in Case 18-1051 ruled against the FCC overreach.  FCC’s Title 1 internet authority was revoked.  FCC authority remain under title II which is voice and text.  The operations of WTF have always been and now remain under the regulatory authorly of state and local governance for any effects - health, environment, preservation, weather etc.  Operations of WTF were never preempted: 47 USC § 332 (c) (7)(B)(4)

On Aug 13, 2021, the US Courts of Appeals, DC Circuit ruled in Case 20-1025, Environmental Health Trust, et al. v FCC — a lawsuit that challenged the legality of the FCC’s attempted de facto rule-making, a sneaky maneuver that tried to extend its current RF microwave radiation exposure guidelines to frequencies above 6,000 MHz, without any reasoned decision-making. The judges caught the FCC and remanded FCC Order 19-126 back to the FCC, invalidating the Order.

The DC Circuit judges ruled the following in Case 20-1025:

“. . . we grant the petitions in part and remand to the Commission to provide a reasoned explanation for its determination that its guidelines adequately protect against harmful effects of exposure to radio-frequency [microwave] radiation. It must, in particular,

  • (i) provide a reasoned explanation for its decision to retain its testing procedures for determining whether cell phones and other portable electronic devices comply with its guidelines,

  • (ii) address the impacts of RF radiation on children, the health implications of long-term exposure to RF radiation, the ubiquity of wireless devices, and other technological developments that have occurred since the Commission last updated its guidelines, and

  • (iii) address the impacts of RF radiation on the environment.”

Wireless radio frequency microwave radiation is bioactive and is currently being insufficiently regulated. Therefore, each state or locality can regulate the maximum power output of microwave radiation from wireless infrastructure antennas that reaches any areas that are accessible to human beings and other living organisms, consistent with the 11,000+ pages of peer-reviewed, scientific evidence that Environmental Health Trust and Children’s Health Defense and others plaintiffs placed in the FCC’s public record: Vol-1Vol-2Vol-3,Vol-4Vol-5Vol-6Vol-7 Vol-8Vol-9Vol-10Vol-11Vol-12Vol-13Vol-14Vol-15Vol-16Vol-17Vol-18Vol-19Vol-20Vol-21Vol-22Vol-23Vol-24Vol-25Vol-26 and Vol-27.

This page is one of three legs of the stool that establishes local control over the operations of Wireless Telecommunications Facilities (WTFs); the other two are the US House/Senate Conference Report for the 1996 Telecommunications Act (“1996-Act”) and the stated purpose of the 1996-Act: to promote the safety of life and property.   (read more at https://wireamerica.org

vs FCC continues

The FCC had their day in court to prove that their guidance standards are grounded in genuine science, but they failed to do so. This means there is no “guidance” to justify deploying sWTFs – in our communities and there will be no such guidance until we have the opportunity to examine the long- and short-term impact sWTFs have on children, adults, and the environment, as required by the court.

Why would anyone think that “guidance” the FCC could not adequately support in court with scientific and researched explanations would be sufficient grounds for deploying sWTFs in our communities?

Tell your town government, zoning, PURA and CT Siting or anyone else in Connecticut - no guidance no approval.  Wait till the FCC has done their job and communicated to the court.  The FCC "guidance" for public exposure is 30 minutes and we are being bombarded 24x7, 365 days  and we don't have an off button on the towers getting closer to our homes or the antennas place on utility and light poles or buildings.

 

West Virginia vs FCC continues

In the recent U.S. Supreme Court decision, West Virginia vs EPA, the U.S. Supreme Court ruled that the EPA is an agency and not law-making body, a power the Constitution grants only to Congress. The upshot of this case is that all agencies, such as the FCC and the EPA, can advise all they want until the cows come home, but they cannot legislate, nor do they have any enforcement power. 

West Virginia vs EPA decision demonstrates that no federal or state agency has any law making or enforcement authority in our community and state whatsoever. So whatever “guidance” an agency such as the FCC provides is just that – guidance – not law. It is not binding and it is not enforceable. 

I appreciate your time and attention to this matter and look forward to working through this to ensure safety for all the people of Connecticut.  

ExteNet Sys. v. Vill. of Flower Hill

More recently, July 29, 2022, in a landmark legal decision, Judge Frederic Block, Senior United States District Judge for the Eastern District of New York, found that the Village of Flower Hill, NY, was justified in denying the application of ExteNet (acting as an agent for Verizon Wireless) to place 18 small cell antennas in the Village. 

The Judge quoted from the 1996 Telecommunications Act, citing the provision that "nothing in this chapter 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."

He noted that other courts have found the Act to be "in many important respects a model of ambiguity or indeed even self-contradiction." Nevertheless, he reasoned, a plain reading of the text supports the claim by the Village that it has acted legally.

Most importantly, the Judge ruled that the provisions of the 1996 Act do not necessarily apply to the new uses of wireless to provide broadband and other services. "Improved capacity and speed are desirable (and, no doubt, profitable) goals in the 

References and more to follow:

United Keetoowah Band of Cherokee Indians in Oklahoma v. FCC, No. 18-1129 (D.C. Cir. 2019) https://www.cadc.uscourts.gov/internet/opinions.nsf/4001BED4E8A6A29685258451005085C7/$file/18-1129-1801375.pdf

Link to the EHT et al. v. the FCC (United States Court of Appeals for the District of Columbia Circuit) https://www.cadc.uscourts.gov/internet/opinions.nsf/FB976465BF00F8BD85258730004EFDF7/$file/20-1025-1910111.pdf

 

Link to the West Virginia et al. v. ENVIRONMENTAL PROTECTION AGENCY et al. 985 F. 3d 914 (2022) https://www.law.cornell.edu/supremecourt/text/20-1530

“07-29-2022” ExteNet Sys. v. Vill. of Flower Hill, No. 19-CV-5588-FB-VMS, (E.D.N.Y. Jul. 29, 2022)