Amicus Curiae Brief — Citizens for the Appropriate Placement of Telecommunications Facilities v. Federal Communications Commission

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No. 00-393 OCT 18 ayy

: CLERK

: In the

Supreme Court of the United States

CITIZENS FOR THE APPROPRIATE PLACEMENT OF

THE COMMUNICATION FACILITIES, ET AL.

Petitioners,

v.

FEDERAL COMMUNICATIONS COMMISSION

AND THE UNITED STATES OF AMERICA

Respondents.

On Petition for Writ of Certiorari

To The United States Court of Appeals

For the Second Circuit

AMICUS CURIAE BRIEF OF CITIZENS FOR OPEN PROCESS IN

ANTENNA SITING, SAN RAFAEL HILL TOWER COMMITTEE,

COUNCIL ON WIRELESS TECHNOLOGY IMPACTS AND SAN

FRANCISCO NEIGHBORHOOD ANTENNA-FREE UNION IN

SUPPORT OF PETITION FOR WRIT OF CERTIORARI

Michael J. Van Zandt, Esq.

Counsel of Record

McQUAID, METZLER, BEDFORD

& VAN ZANDT, LLP

221 Main Street, 16" Floor

San Francisco, CA 94105

Telephone: 415/905-0200

TABLE OF CONTENTS

mUDOOEG WE A 85 688 ea i ok oe 1

way OT Nh AG ak eh a 2

ns. snaps Ce ee ee CTE EOE Ee Foe eee 4

A. Local Government Has a Traditional Role in Protecting

RI kc i ical a ucave cascade a

B. The Telecommunications Act of 1996 Unduly Interferes

with Responsibilities of Local Government Under the

California Environmental Quality Act................. 6

C. The Tenth Amendment, the Necessary and Proper Clause,

and the Commerce Clause Do Not Allow Prohibitions on the

Regulation of Telecommunications Facilities by Local

cE OTS SC lanai State ap cen Snags! 10

D. Local Governments in California Refuse to Consider

Health Effects From Public Telecommunications Facilities

Even Though They Are Not Exempt Even Under FCC’s

interpretation of the Telecommunications Act of 1996 .. 13

GUE Na das 25 Pens aWige Gurek sk ibe BoWkw des eints s 17

TABLE OF AUTHORITIES

CASES

Cellular Phone Task Force v. FCC, 205 F.3d 82 (2d Cir. 2000) . 1,13

Cellular Telephone Company et al. v. Zoning Board of Adjustment of the

Borough of HO-HO-KUS, New York et al., 197 F.3d 64 (3d Cir. 1999) 5,8

Euclid v. Ambler Realty Co., 272 U.S. 365, 387 (1926) ............ 2

Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21 (1976) .......... 8

Leonoff v. Monterey County Board of Supervisors (1990) 222 Cal.App.3d

L357, BOOB eso ee 0d eRe CA i ee 8

Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 373-374

CRGBD) oc ccccteetcee dtd 6 sens uw su nears 8

Printz v. United States, 521 U.S. 898, 923-926 (1997) ............ 11

Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350

(RGR) oo oo oien'e'tin SS b'w bie Oe ate aa 8

SBA Communications, Inc. v. Zoning Commission of the Town of

Brookfield, 112 F.Supp. 2d. 233 (D. Conn. 2000) ............. 5

Sprint Spectrum, L.P. et al. v. Board of County Commissioners of

Jefferson County, 59 F.Supp. 2d 1101 (D.C. CO. 1999) ............ 5

Wisconsin Public Intervenor, et al. v. Ralph Mortier, et al., 501 U.S. 597,

GiS C2999) nw sce weed cee ee eee 4,12

STATUTES |

47 U.S.C. § SERCH GR. - 4 4 8494S ae a eee 16

Cal. Pub. Res. Godie $9 2IQQUS1E77. foes iets de dnesckun 2, 6

ii

rene

Cal. Public Resources Code § 21080 ..................0000. 6

Cal. Public Resources Code § 21080(d) ..................... * 4

Cal. Public Resources Code § 21081(b) ................0c0ee 8

Cal. Public Resources Code § 21083(c) ...............0cceee 7

Cal. Public Resources Code §§ 21091-21092 ...................... 7

Cus. pean menmmeroes Cae € 21167 oo. ied cick oee 7

California Environmental Quality Act .................00ceeee 2,4, 5

Cn FOr OG Se WA, © TAMOND s bis sn cicusrncuvicascnccenesics 10

Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C.

IN hares Ada aii wks aA nud ENS < 044k b KON OAs 1]

Federal Water Pollution Control Act, 33 U.S.C. § 1316(c)........... 10

First Amendment to the U.S. Constitution. ...................0.. 10

National Environmental Policy Act, 42 U.S.C. § 4321-4370e ...... 7,8

Resource Conservation and Recovery Act, 42 U.S.C. § 6926(b) ...... 10

Telecommunications Act of 1996. . 2,3, 5,6, 8, 11, 12, 13, 14, 15, 16, 17

Tenth Amendment to the United States Constitution ........... 1,3, 10

OTHER

Press Release from U.S. Department of Transportation, Office of Public

I ean wae Oe ae +

“Pulsed high-frequency electromagnetic field affects human sleep

and sleep electroencephalogram,” Alexander A. Borbely, et al.

EEE RR ray Ae 9

“Electromagnetic fields (1.8 Ghz) Increase the Permeability to

Sucrose of the Blood-Brain Barrier In Vitro,” A. Schirmacher, et al.,

BiciectrahGamnaiics, Val. Zh, FH B occ es ees ded eswetes 10

iv

Interests of the Amici Curiae

Amici Curiae are “Citizens for an Open Process in Antenna

Siting” (“COPAS”), “San Rafael Hill Tower Committee,” “Council on

Wireless Technology Impacts,” and San Francisco Neighborhood

Antenna-Free Union” (“SNAFU”) of Marin and San Francisco

Counties in the State of California.' Amici are organizations which

have participated in local government decision-making with regard

to the siting of telecommunications facilities. Amici have received

the written permission of the parties and intervenors to file a brief in

support of the petition. Amicus “Council on Wireless Technology

Impacts” is a non-profit consulting and educational organization

devoted to the issue of informing citizens and government on the

potential health impacts from wireless technologies, including

cellular phones, personal communications systems, radio and

television broadcasts, and other forms of wireless communication.

Each of the Amici has encountered great reluctance and at times

outright prohibitions from local governmental bodies to consider

input to the siting of telecommunications facilities based on health

considerations. The resistance by local government to even hear

public comments on health considerations is born from the

perceived preemptive effect of Section 704 of the

Telecommunications Act of 1996. 47 U.S.C. § 332(c)(7) (B) (iv).

Amici agree with the petitioners that section 704 of the

Telecommunucations Act of 1996 violates the Tenth Amendment to

the United States Constitution and unduly interferes with state and

local government decisions that are traditionally within the realm of

protection of local health and safety interests. Moreover, the

decision of the Second Circuit Court of Appeals in Cellular Phone

Task Force v. FCC, 205 F.3d 82 (2d Cir. 2000) (reproduced at

* Counsel for Amici Curiae herein has prepared the brief on

behalf of the Amici and no other person or entity has made a monetary

contribution in whole or in part to the cost of its preparation.

1

Petitioners’ Appendix (“A”) at A-1) will have the effect of chilling

public participation in environmental decisions of local governments

and undermines the State of California’s statutory requirements that

local governments analyze and evaluate the environmental health

effects of proposals which they must approve under the California

Environmental Quality Act. Cal. Pub. Res. Code §§ 21000-21177.

Summary of the Argument

Local and state governments have a strong interest in the

protection of the health and safety of their citizens. The police

power of the state can be invoked to protect citizens when health

and safety protections are threatened. The proliferation of cellular

telephones across the nation is causing more and more local

governments to face the issue of where to place all of the antennas

needed to support the millions of cellular telephones now in use.

The Telecommunications Act of 1996 is interfering with the

traditional decision making authority of local governments because

of the perceived preemptive effect of section 704 of the Act. Local

government planning bodies are being advised that they may not

consider, nor may they listen to public comments concerning the

health effects of telecommunications facilities.

Under California law, local and state governments are

required to analyze and evaluate the potential environmental

impacts from their own proposed actions and those actions by

private citizens or entities that must be approved by local or state

government. The lead agency must prepare environmental

documentation evidencing its evaluation of the environmental

effects of the proposal under the California Environmental Quality |

Act (“CEQA”). Cal. Public Resources Code §§ 21000-21177. The

lead agency must evaluate the potential impacts of the proposal on

human beings and the public has a right to participate in the

evaluation process by oral and written comments. Local

ane aatetieaiaiamaitiateiaiaiiiiiieil

governments in California are not evaluating, nor are they

considering the potential environmental impacts from

telecommunications facilities because of the perceived preemptive

effect of section 704 of the Telecommunications Act of 1996. The

body of scientific research on potential health effects from

telecommunications facility emissions supports a “fair argument”

under CEQA that such impacts must be analyzed and evaluated.

Public participation in the CEQA process is being chilled based on

local governments’ refusal to consider these health effects.

Therefore, the Act is unduly interfering with the dictates of state law

with regard to analyzing environmental impacts from

telecommunications facilities on humans under California law.

The Tenth Amendment to the U.S. Constitution, the

Necessary and Proper Clause and the Commerce Clause cannot be

used by the Congress to compel states to require or prohibit acts.

The Telecommunications Act of 1996 is constitutionally infirm

because it seeks to prohibit state and local governments from

considering the health effects from telecommunications facilities.

Congress has deait with this dilemma in the past by passing federal

environmental legislation that allows states to enforce federal

environmental standards while preserving the states’ right to adopt

more stringent standards. This accomplishes the federal goals but

does not unreasonably interfere with state interests.

Local governments are applying the perceived preemptive

effect of section 704 of the Telecommunications Act of 1996

prohibiting them from considering environmental effects from

private wireless telecommunications facilities that are in compliance

with FCC emissions standards to public telecommunications

facilities. The plain language of section 704 of the Act regulates

“personal wireless service facilities” only and in no way affects

public wireless facilities. Nonetheless, local governments, confused

about the application of the Telecommunications Act, are refusing to

consider health effects from facilities to which the act clearly does

not apply. This is further evidence of the unconstitutional intrusion

by the Act into areas of local concern.

Argument

A. Local Government Has a Traditional Role in Protecting Health

and Safety

Traditionally, local and state governments have a strong

interest in the protections of the health and safety of their citizens.

See Wisconsin Public Intervenor, et al. v. Ralph Mortier, et al., 501

U.S. 597, 615 (1991). The police power of the state and local

government can be invoked to protect health and safety of the

citizens when they are threatened. Euclid v. Ambler Realty Co., 272

U.S. 365, 387 (1926). Local governments, in particular, use the

exercise of the police power in the area of land use decisions to

protect the health and safety of citizens and to promote land use

policies. The federal government is neither empowered nor well

suited to deal with land use issues at the local government level.

Traditional principles of federalism reserve to the states and local

governments decision making authority on health and safety issues

that affect their citizens. Therefore, the federal government should

only intrude on local issues dealing with health and safety if there is

a compelling federal governmental interest and such intrusion does

not run afoul of the Tenth Amendment protections and principles of

federalism.

The proliferation of telecommunications facilities across this

country, especially cellular telephone antenna sites, is pressuring

local governments to find more and more suitable sites for these

antennas. The number of cellular phones in this country has

increased from 345,000 in 1985 to over 50,000,000 in 1998. The

number is expected to double in the year 2000. Press Release from

U.S. Department of Transportation, Office of Public Affairs, January

7, 1998. This proliferation of cellular phones has been accompanied

by a corresponding proliferation of antenna facilities to transmit

their signals. Cellular phone companies are placing these antennas

in residential areas, on schools, churches, near hospitals, and in fact,

any available site so they can provide uninterrupted cell phone

coverage. Local government planning commissions are finding

requests for siting of wireless communications facilities are a major

part of their workload.

The Telecommunications Act of 1996 is interfering with the

traditional role of local governments in siting decisions within their

jurisdiction because the wireless telecommunications industry is

using the Act to support discrimination claims and claims of

improper decision making by local government based on health

considerations. See for example, Cellular Telephone Company et al.

v. Zoning Board of Adjustment of the Borough of HO-HO-KUS, New

York et al., 197 F.3d 64 (3d Cir. 1999)(case remanded with

instructions to review gap in service requirements under

Telecommunications Act); Sprint Spectrum, L.P. et al. v. Board of

County Commissioners of Jefferson County, 59 F.Supp. 2d 1101 (D.C.

CO. 1999) (Board decision upheld as there was no evidence that

Board favored one supplier over another); SBA Communications, Inc.

v. Zoning Commission of the Town of Brookfield, 112 F.Supp. 2d. 233

(D. Conn. 2000) (denial of antenna application based on health and

safety concerns reversed). Local governments are placed in an

impossible position, trying to fulfill the mandate to protect health

and safety, but handicapped by the perceived preemptive effect of

the Telecommunications Act of 1996. Local planning commissions,

city councils and county boards of supervisors are being advised not

only that they cannot consider health effects from radio frequency

radiation (“RFR”) but also that they may not even listen to

presentations by concerned citizens lest such information find its

way into the public record and taint the decision making process.

Such advice is causing a crisis of confidence in local government

caused by a federal statute seemingly designed to protect the

telecommunications industry.

In San Francisco, for example, the City and County of San

Francisco has adopted Wireless Telecommunications Services

Guidelines for the placement of antennas. The guidelines do not

take into consideration the health and safety effects of RFR. As

such, the City Planning Commission routinely refuses to consider

any input from citizens on the issue of health effects from RFR. The

City is also preventing the consideration of health effects in the

development of long-range plans by the City-chartered

Telecommunications Commission. Representatives from amicus

SNAFU have been literally advised that they cannot speak at the

Telecommunications Commission hearings on the issue of health

effects from telecommunications facilities. Representatives from

amicus COPAS were told not to raise health concerns before the

Planning Commission of the Town of Tiburon, California. Such

prohibitions have a chilling effect on public participation in local

government decisions and undermine the local governments’

authority to protect citizens from threats to health and safety.

B. The Telecommunications Act of 1996 Unduly Interferes with

Responsibilities of Local Government Under the California

Environmental Quality Act

Under the California Environmental Quality Act (Cal. Public

Resources Code § 21000-21177), local governmental bodies are

required to analyze and evaluate the environmental impacts of

proposals requiring their approval. Cal. Public Resources Code §

21080. The lead agency for such analysis must determine, based on

a substantial evidence test, whether sufficient evidence exists to

prepare a detailed environmental impact report of the potential

environmental impacts from the proposed action. Id. at § 21080(d).

One of the primary considerations of the governmental agency in

deciding if there are environmental effects is whether the potential

environmental impacts of the proposal will cause substantial adverse

effects on human beings, either directly or indirectly. Id. at §

21083(c). A key provision of the California Environmental Quality

Act is public participation in the review and commenting on

environmental impacts of the proposed action. Id. at § § 21091-

21092. The governmental agency preparing the environmental

impact report must respond to comments from the public in writing.

Id. An environmental impact report that fails to address

environmental impacts on the health of a human being from the

proposal would be fatally defective and subject to being challenged

in state court through an administrative mandamus process. Id. at §

21167. The public participation and judicial challenge processes of

the California Environmental Quality Act are well used by the

citizens of California to challenge governmental decisions that fail to

adequately consider the potential environmental consequences of

proposed actions, much like the processes established under the

comparable federal National Environmental Policy Act. 42 U.S.C. §

4321-4370e.

In several cases in California, where local governments are

required to analyze the environmental impacts of proposals, the

local governments have refused to consider, in the environmental

impact reports prepared under the California Environmental Quality

Act, the environmental impacts of RFR on the health of human

beings. Citizens have submitted comments to such reports but the

governmental bodies have refused to consider any health effect

information, indicating that such consideration is not allowed if the

facilities meet the FCC standards for RFR emissions. In fact, the

governmental bodies are refusing to evaluate health effects in the

environmental impact reports, stating merely that the facilities will

meet FCC requirements, and, therefore, no consideration of health

effects is required. This position, fostered by the perceived

preemptive effect of section 704 of the Telecommunications Act of

1996, has cut off debate and consideration at the local level of

potential health effects from RFR exposure.

The California Environmental Quality Act requires a full

analysis of the environmental impacts of a proposal if a “fair

argument” can be made that environmental impacts will result from

the proposed action. Leonoff v. Monterey County Board of Supervisors

(1990) 222 Cal.App.3d 1337, 1348. The “fair argument” standard is

roughly comparable to the “hard look” doctrine for reviewing

environmental documents under the National Environmental Policy

Act of 1969. See e.g. Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21

(1976); Marsh v. Oregon Natural Resources Council, 490 U.S. 360,

373-374 (1989); Robertson v. Methow Valley Citizens Council, 490

U.S. 332, 350 (1989). However, the “fair argument” standard is

much less strict than the “hard look” doctrine, in that any reasonable

and legitimate argument that a potentially significant environmental

impact may result from the proposed action is sufficient to require

the governmental agency to prepare new documentation addressing

the potential environmental impacts pressed upon the governmental

agency through the public input process. Leonoff, supra, 222 Cal.

App. 3d at 1348. Mitigations for the potential impacts must be

evaluated and implemented by the governmental body unless a

statement of overriding consideration determines that the impacts

cannot be mitigated and the decision makers believe that specific

overriding economic, legal, social, technological , or other benefits

outweigh the significant effects on the environment. Cal. Public

Resources Code § 21081(b). In the case of health considerations

from RFR exposure, the petition provides numerous examples of

studies and internationally adopted standards that recognize and

protect against non-thermal health effects from RFR emissions.

These studies are more than sufficient to satisfy the criteria under

California law that a “fair argument” can be made that there is a

potential for an environmental impact on human beings from RFR.

8

Since the original petition was filed in this action some very

important new information has been developed that should add to

the compelling data already in existence that RFR causes

deleterious effects on human health. In June 2000, a number of

eminent scientists and government officials Participated in a

conference in Salzburg, Austria entitled the “International

Conference on Cell Towers & Public Health.” The international

conference was convened by the State of Salzburg and attended by

prominent scientists, public health officials and citizens from around

the world. The panel of scientists who presented their original

research and studies on RFR at the meeting agreed on a resolution

setting standards on Mobile Telecommunications Base Stations. The

central point of this resolution is to call for a sharply reduced

exposure limit to the combined emissions from all high frequency

radiation sources, The recommended standard by the scientific

community assembled in Austria was for an exposure limit many

times more stringent than the current exposure limit set by the FCC,

10 uW/cm2 as compared to 100 mW/cm2.

There are also some recent research findings further linking

the exposure to RFR and adverse effects on human health.

Alexander A. Borbely, et al. published a study in Neuroscience Letters

(1999) titled “Pulsed high-frequency electromagnetic field affects

human sleep and sleep electroencephalogram.” Dr. Borbely and his

colleagues reports that sleep patterns and electroencephalogram

(EEG) readings are altered with 900 MHz cell phone exposures

during sleep. Alternating fifteen minute on-and-off intervals with

RF exposure produced a reduction in the amount of waking after

sleep onset from eighteen minutes to twelve minutes. In addition

spectral power of the EEG in non-rapid eye movement sleep was

increased. The maximum rise occurred in the 10-11 Hz and 13.6-14

Hz bands during the initial part of sleep. The results demonstrate

that cell phone radio frequency energy may promote sleep and

modify the sleep EEG. Vera Garaj-Vrhovac reports on exposure to

microwave radiation in Volume 39, No. 13 of Chemosphere (1999) in

an article entitled “Micronucleus Assay And Lymphocyte Mitotic

Activity In Risk Assessment Of Occupational Exposure To Microwave

Radiation.” In this study the author reports that exposure to

microwave radiation of only 10-20 uW/cm2 in workers chronically

exposed to 1250-1350 MHz was sufficient to cause an increase in

micronuclei, an aberrant form of DNA. Finally, A. Schirmacher, et

al. published a study on the effects of RFR on the blood- brain

barrier in Volume 21, No. 5 of BioElectroMagnetics, entitled

“Electromagnetic Fields (1.8GHz) Increase the Permeability to

Sucrose of the Blood-Brain Barrier In Vitro.” The authors report that

when an in vitro model of the blood-brain barrier was exposed to

1.8 GHz, there was an increase in permeability to sucrose across the

barrier. Researchers state that for the first time a definite,

reproducible effect of microwave radiation exposure on the blood-

brain barrier in vitro has been achieved. The exposure conditions of

this study resemble those used in mobile telecommunications. The

scientific evidence is mounting that RFR can affect human health.

Nonetheless, the local governmental governments refuse to

consider such evidence, based on fear that they will run afoul of the

perceived preemptive effect of the federal law. Public participation

in the decision making process of local government is being chilled

by this federal directive. Such public right to comment upon and

bring to the attention of lawmakers concerns that could affect the

outcome of local government decision-making is protected speech

under the First Amendment to the U.S. Constitution.

C. The Tenth Amendment, the Necessary and Proper Clause, and

the Commerce Clause Do Not Allow Prohibitions on the Regulation

of Telecommunications Facilities by Local Government

We agree with the petitioners that the U.S. Constitution

does not allow the federal government to prohibit local governments

10

from regulating locally placed telecommunications facilities. This

Court has ruled very recently that the Tenth Amendment, the

Necessary and Proper Clause and the Commerce Clause cannot be

used to compel states to require or prohibit acts, even if the federal

government itself has the power to so require or prohibit such acts.

Printz v. United States, 521 U.S. 898, 923-926 (1997). Section 704

of the Telecommunications Act of 1996 is constitutionally infirm

because it seeks to prohibit states from considering health effects

from RFR, despite the specific requirements of California state law -

the mandate local governments to consider such health effects. As

the Court stated in Printz:

When a “La[w] . . . for carrying into Execution” the

Commerce Clause violates the principle of state

sovereignty reflected in the various constitutional

provisions we mentioned earlier, supra, at 2376-

2377, it is not a “La[w] . . . proper for carrying into

Execution the Commerce Clause,” and is thus, in the

words of The Federalist, “merely [an] ac([t] of

usurpation” which “deserve[s] to be treated as such.”

The Federalist No. 33, at 204 (A. Hamilton).

521 U.S. at 923-924. Based on these considerations, the prohibition

expressed in section 704 of the Telecommunications Act of 1996

cannot pass constitutional muster.

Congress has dealt with this dilemma in the past in the arena

of environmental protection. Recognizing the tension between

federal policy for protection of the environment and the need to

incentivize the states to implement that federal policy, the Congress

passed laws that allowed the states to administer their own

environmental programs by way of delegation from the federal

government. See for example, Federal Water Pollution Control Act,

33 U.S.C. § 1316(c)(allowing states to enforce standards under the

11

Act if they are at least as stringent as the federal standards); Clean

Air Act, 42 U.S.C. § 7543(b) (states may adopt standards at least as

protective as federal standards); Resource Conservation and

Recovery Act, 42 U.S.C. § 6926(b) (states are authorized to enact

their own programs if they are equivalent to the federal program,

are consistent with federal and other state programs and provide for

adequate enforcement).

The scheme set forth in the Federal environmental statutes

mentioned does not require or prohibit state acts. On the contrary,

the federal environmental scheme encourages the states to

administer their own programs but allows the states the flexibility to

establish their own standards, even if they are more stringent than

the federal standards. A clear example of this is found in the Court’s

decision in Wisconsin Public Intervenor, et al. v. Ralph Mortier, et al.,

501 U.S. 597 (1991). In Wisconsin Public Intervenor, the Court held

that the Federal Insecticide, Fungicide, and Rodenticide Act

(“FIFRA”), 7 U.S.C. 136 et seq., did not preempt state governments

from regulating pesticides. The Court noted that not only did the

Act not preempt local governments from regulating pesticides, but

the Act implied a regulatory partnership between federal, state and

local governments, noting that section 136t(b) of the Act required

the Administrator of the Environmental Protection Agency to

cooperate with “any appropriate agency of any State or any political

subdivision thereof ....” Wisconsin, 501 U.S. at 615. While FIFRA

does not contain the same express language of the

Telecommunications Act, there are parallels to be learned from the

relationship between federal laws regulating local environs and

attempts to restrain states from acting in the same area. Especially

in the area of health and safety, the courts should be wary of

intrusion by the federal government into the local arena.

It is important to note the distinction the Third Circuit Court

of Appeals has made with regard to the regulatory effect of the

Telecommunications Act of 1996 in Cellular Telephone Company,

12

supra, 197 F.3d at 71. The Third Circuit states:

The Telecommunications Act bars local regulation

that prohibits or has the effect of prohibiting personal

wireless services, not the facilities that provide those

services. Under the right conditions, it may be

possible to provide adequate level of personal

wireless services to a particular community solely

through facilities outside that community. We are

not prepared to hold that every community must

permit wireless communication facilities somewhere

within its borders regardless of the need for such

facilities, nor do the facts of this case require us to

decide the issue now. Id.

Given overriding constitutional considerations that would restrain

federal authority to prohibit consideration of health effects from

telecommunications facilities, the statute may be construed not to

prohibit the provision of services but merely to regulate the

placement of such facilities, if the local government determines that

considerations of health, safety, or other traditional local land use

criteria demands such regulation.

D. Local Governments in California Refuse to Consider Health

Effects From Public Telecommunications Facilities Even Though

They Are Not Exempt Even Under FCC’s Interpretation of the

Telecommunications Act of 1996

In Marin County, California, the local governments have

created a Joint Powers Authority for the purpose of providing

wireless communications among fire, police, emergency services and

other public entities. The system, known as the Marin Emergency

Radio Authority or “MERA” is intended to provide routine and

13

emergency wireless telecommunications among the various local

governmental agencies. The system requires the siting of seventeen

large antenna towers in various parts of the County, some of which

are located in or near residential neighborhoods. Each town or city

where an antenna must be sited must review the MERA proposal

and approve the erection of the antenna towers and the operation of

the antennas. MERA has prepared an environmental impact report

under CEQA that does not analyze or evaluate health effects from

the proposal. MERA did not accomplish the health analysis because

it understood that such analysis was preempted by section 704 of

the Telecommunications Act of 1996.

The Telecommunications Act of 1996 contains a provision

which seemingly prevents local communities from regulating

telecommunications facilities based on the environmental effects of

RFR. The relevant provision of the Act provides:

§ 332. Mobile services

(c)(7) Preservation of local zoning authority. (A) General

authority. Except as provided in this paragraph, nothing in

this Act [47 USCS §§ 151 et seq.] 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.

Thus it is the intent of the statute not to interfere with local zoning or

planning decisions with regard to “personal wireless service facilities,”

except as provide for in the same paragraph. It is important to note that the

extent of the preemption purportedly extends only to the category of

“personal wireless service facilities.”

The statute goes on to specify the limits on local and state

government authority over siting and planning decision regarding mobile

phone services. The statute provides: f

14

(B) Limitations. (i) The regulation of the placement,

construction, and modification of personal wireless

service facilities by any State or local government or

instrumentality thereof

(1) shall not unreasonably discriminate among providers of

functionally equivalent services; and

(II) shall not prohibit or have the effect of prohibiting the

provision of personal wireless services.

(ii) A State or local government or instrumentality thereof

shall act on any request for authorization to place,

construct, or modify personal wireless service facilities

within a reasonable period of time after the request is duly

filed with such government or instrumentality, taking into

account the nature and scope of such request.

(iii) Any decision by a State or local government or

instrumentality thereof to deny a request to place,

construct, or modify personal wireless service facilities

shall be in writing and supported by substantial evidence

contained in a written record.

Thus the statute protects the telecommunications industry from

discrimination and from the arbitrary regulation of personal wireless

service facilities that has the effect of preventing service. The act also sets

forth requirements for timely review of applications of such facilities and

for the standard of review in a challenge to a local or state government

decision denying an application to place, construct or modify personal

wireless service facilities.

Finally, the act addresses the limits placed on consideration of

health effects from personal wireless service facilities, stating:

(iv) 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

15

emissions to the extent that such facilities comply with the

Commission's regulations concerning such emissions.

It is this provision which unconstitutionally intrudes on state and local

government decisions and has the effect of prohibiting a state or local

government from regulating a facility if the facility complies with the FCC

standards. However, the prohibition applies only to “personal wireless

service facilities.”

Some governmental agencies are attempting to apply this prohibition to all

wireless telecommunication facilities, whether they are “personal” or

otherwise. The MERA example is important because the application of

the prohibition further intrudes into local decision making to a place where

even the Congress did not intend. To explain why the prohibition does not

apply to public wireless service facilities, one need only review the

definitions in the Telecommunications Act. The definitions provide:

(C) Definitions. For purposes of this paragraph —

(i) the term “personal wireless services” means

commercial mobile services, unlicenced wireless services,

and common carrier wireless exchange access services;

(ii) the term “personal wireless service facilities” means

facilities for the provision of personal wireless services;

and

(iii) the term “unlicenced wireless service” means the

offering of telecommunications services using duly

authorized devices which do not require individual

. licenses, but does not mean the provision of direct-to-

home satellite services (as defined in section 303(v)[47

U.S.C.S. § 303(v)].

There are some key phrases in this particular section of the Act.

The first is the reference in section 332(c)(7)(B)(iv) to the fact that no

state or local government may regulate the placement, construction, and

modification of personal wireless service facilities on the basis of the

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Tee en a ene Mme ann TE rE rm

environmental effects of RFR. At first glance that would seem to preclude

local governments from regulating the MERA facilities on the basis of

RFR effects. However, the heading for section 332(c) specifies that it

relates to commercial and private mobile services. Clearly, MERA does

not involve either commercial or private mobile services.

Moreover, section 332(c)(7)(C)i) defines “personal wireless

services” as commercial mobile services, unlicenced wireless services, and

common carrier wireless exchange access services. Clearly, MERA does

not involve commercial services and is aot part of a common carrier —

exchange service. The MERA facilities are also required to be licensed

because there is no general exemption for emergency radio systems.

Therefore, section 332 of the Act does not preempt state or local

governments from regulating the environmental effects of RFR from

public communications services. The confusion caused by the

Telecommunications Act on local decision making needs to be addressed

by the Court and local authority and autonomy restored.

Conclusion

The Petition for Writ of Certiorari should be granted.

Dated: San Francisco, California

December 4, 2000

MICHAEL J. VAN ZANDT, ESQ.

Counsel of Record

McQUAID, METZLER, BEDFORD

& VAN ZANDT, LLP

221 Main Street, 16" Floor

San Francisco, CA 94105

Telephone: 415/905-0200

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