Petition for Writ of Certiorari — Citizens for the Appropriate Placement of Telecommunications Facilities v. Federal Communications Commission

’ ~ Supreme Court, U.S

a) ee See S|

00 407 sep 13 2000

OFFICE OE THE CLERK

No. Ns

IN THE

SUPREME COURT OF THE UNITED STATES

David Fichtenberg, Petitioner, pro se

VS.

Federal Communications Commission and the

United States of America, Respondents

On Petition for a Writ of Certiorari to the

Court of Appeals for the Second Circuit

PETITION FOR A WRIT OF CERTIORARI

David Fichtenberg

Petitioner, pro se

PO Box 7577

Olympia, Washington 98507-7577

Telephone: (206) 722-8306

A Rr re

ee Le = eile trate

QUESTIONS PRESENTED

In 1997 the Federal Communications Commis-

sion (“FCC”) concluded a rule making in the matter of

Guidelines for Evaluating the Environmental Effects of

Radiofrequency (“RF”) Radiation and adopted certain

statutes preempting local regulation of RF exposure.

FCC addressed RF exposure from cellular phone, cellu-

lar towers and other RF sources. On health related mat-

ters FCC said it would generally defer to its advising

federal health agencies. Some comments in the record,

particularly, public comment on health related topics,

including those submitted under 47 U.S.C. 405 (Petition

for Reconsideration) were not given meaningful consid-

eration by any party because FCC said it could rely on

its advising expert federal agencies.

1. EXCLUSION OF CONSDERATION OF PUBLIC

COMMENT:

Whether, under the Administrative Procedures Act

(APA), National Environmental Policy Act (NEPA).

and statute 47 U.S.C. 405 (Petition for Reconsideration

to FCC), lead agencies in a rule making on a matter in

which they are not expert and where they defer to advis-

ing expert agencies and technical committees, may

avoid assuring meaningful consideration of comments

in the record. particularly public comment, when such

comment would lawfully be required were the advising

expert agencies issuing a similar rule making?

2. REVERSING POLICY OF MINIMIZING RF EX-

5

POURE TO CELLULAR PHONES AND TOWERS:

Whether FCC exercised its lawful discretion under

APA, NEPA, and 47 U.S.C. 405, when in its new RF

guidelines, FCC did not follow Congressional policy in 47

U.S.C. 324 requiring that exposure to RF power be mini-

mized, when FCC did not explain why it reversed and re-

jected its previous policy of requiring its licensees to keep

RF radiation exposure from their facilities and devices as

low as reasonably achievable, and when FCC extended

such requirement during a transition period?

3. FCC DOING THE ‘FUNCTIONAL EQUIVALENT"

OF NEPA REQUIREMENTS

Whether lead agencies who are not expert in the on

health or environmental impact of the matter of their rule-

making, may define some ‘functionally equivalent’ proce-

dures to NEPA to follow and so avoid their formal NEPA

requirements?

4. PROPER DELEGATION OF AUTHORITY TO FCC”?

Whether Congress may delegate authority to preempt

State and Local public health and safety regulations to

an agency, such as the preemption authority granted to

the FCC in 47 U.S.C. 332(c)(7)(B)(iv) or in 47 U.S.C.

253(b), when that agency does not have expertise in

that public health or safety matter?

5. ARE HEALTH EFFECTS PART OF ENVIRON-

MENTAL EFFECTS?

SARL IT EEE OE, OE

‘

Whether the FCC may apply typical agency discre-

tion to resolve ambiguous statutory terms and imply from

47 U..S.C. 332(c)(7)(B)(iv) its preemption of local public

health and safety regulations pertaining to the siting, use,

and operation of cellular towers and other wireless facili-

ties on the basis of “health effects” of RF radiation from

such facilities, when the Telecommunications Act of 1996

(TCA) prohibits implied preemption, only preempts the un-

defined term “environmental effects”, provides in TCA

Sec. 253(b) for State regulations protecting the public

safety and welfare even if it may create barriers to entry of

FCC licensed services, and when FCC does not have ex-

pertise in RF health matters?

6. PREMPTION OF LOCAL REGULATIONS PRO-

TECTING THE ENVIRONMENT AND HEALTH

Whether Congress, by preempting local land use cellular

phone tower RF exposure regulations to protect the envi-

ronment (or the public health - if FCC interpretation is

adopted), has de facto forced jurisdictions to comply by

leaving them no real choice, or to be compelled if they re-

fuse, has commandeered legislative processes of the states

to administer a federal program, in violation of the Tenth

Amendment as described in New York v. United States,

505 U.S. 144 (1992)and Printz v. United States, 521 U.S.

898 (1997)

LIST OF PARTIES

4

Petitioners

All parties in the proceeding below do not appear in the

caption on the cover page of this petition.. A list of all par-

ties to the proceeding in the court whose judgment is the

subject of this petition is as follows:

Cellular Phone Taskforce, Ad-Hoc Association of Parties

Concerned About the Federal Communications Commis-

sion Radio Frequency Health and Safety Rules; David

Fichtenberg; Citizens for Appropriate Placement of Tele-

communications Facilities; John Bardis; Erica Zweig,

Christopher Beaver, of Noe Valley Families Against the

Antennas; Major Belkin; Donna Casey; Maggie Fox; Ei-

leen Lahey; Mark R. Shirely; M. Sue Storm, of Healthy

Home Alliance; Joseph Bohacz; Candice Brown; Gary

Brown, of Families for Appropriate Cellular Tower Siting;

Susan Clarke, of Environmental Health Advocacy League;

Mary-Croughan Minihane; Libby Kelley; Silvia M. Siegel;

Annegret C. Topel, of Citizens of Marin for Sensible Com-

munications Planning; Jerry Davis; Jean Foley, of Ulysses

Citizens for Responsible Technology; Holly A. Fournier,

Selectboard member of Charlotte, WT and co-chair of Citi-

zens for Appropriate Placement of Telecommunications

Facilities; Julianna Free, of Lifetime Resources, Inc.; Anne

Galloway, of Hardwick Action Committee; David Gell;

Richard Gianattiasio, of Northboro Residents for Responsi-

ble Tower Siting; Dale A. Newton; Janet R. Newton; Ber-

nard Greenberg; Laridna A. Knowlton; Roger Knowlton,

of Thistle Hill Neighborhood Alliance; Cathy Bergman-

Venezia; Frank Goodrich; Andrew J. Hillman; Marija

Huges; Mark Hutchins; Ralph E. Munston, of EMR Alli-

ance; Julie E. Jordan, of Coalition of Concerned Citizens

For Responsible Technologies; Jeannine Karlsson, Com-

missioner of Town of Bedford Conservation Board;

Patricia Kelley; S.G. Lawrence; Emery Lazar; Dawn Ma-

son; Dorothy Miller, Advisory Neighborhood Commis-

<

sioner; Edward Steinman; Peter De Pippo; Michael Wor-

sham; The Communications Workers of America, AFL-

ClO; CWA Local 7810; Rainer Waldman Atkins; Alan

Golden; Virginia J. Moore-Ward; Faye Mueller-Hebert;

Patricia Vaughey; Bill Jenkins; and Council of Washington

State CWA Locals.

Other Respondents are the Federal Communications Com-

mission and The United States of America.

And Respndent Intervenors are the Cellular Telecommuni-

cations Industry Association, Natioral Association of

Broadcasters, Association for Maximum Service Televi-

sion, Inc. Electromagnetic Energy Association, and AT&T

Wireless Services, Inc.

A

TABLE OF CONTENTS

OPINIONS BELOW 10

JURISDICTION 11

CONSTITUTIONAL AND STATUTORY 18

PROVI SIONS INVOLVED

STATEMENT OF THE CASE 20

REASONS FOR GRANTING WRIT 25

CONCLUSION 38

INDEX TO APPENDICES

APPENDIX A

See Appendix A submitted with a Petition for

Writ of-Certiorari in behalf of Citizens For The

Appropriate Placement Of Telecommunications

Facilities et al., by counsel Whitney North Sey-

mour and Peter J. Clines of the law firm Landy

& Seymour, and submitted to the proceeding in

the court whose judgment is the subject of this

and their petition

4 ?PPENDIX B 39

APPENDIX C 45

7

Table of Authorities Cited

Cases

Friends of the Earth, Inc.

v. Laidlaw Environmental

Services (TOC) Inc.

120 S.Ct. 693

145 L.Ed. 2” 610

Motor Vehicles Mfrs. Assn

vs. State Farm Mutual

New York v. United States,

505 U.S. 144 (1992)

Printz v. United States,

521 U.S. 898 (1997)

Cellular- Telephone Co. v.

Town of Oyster Bay,

166 F.3d 490 (2° Cir. 1999)

lowa Wireless Services, L.P.

v. City of Moline, Ill

29 F.Supp. 915 (C.D.Ill 1998)

Omnipoint Corp. v.

Zoning Hearing Bd.

of Pine Grove, TP

R

20 F.Supp. 2d 875,

881-92 (E.D. Pa. 1998)

Illinois RSA No. 3 v.

County of Peoria, 965 F. Supp.

732, 747, (C.D. Il. 1997)

BellSouth Mobility Inc. v ; |

Gwinnett County Georgia,

- 944 F. Supp. 923, 929 (N.D. 1996).

Statutes and Rules

28 U.S.C Sec. 1254(1)

47 U.S.C. 405

47 U.S.C 324

47 U.S.C. 332(c)(7)(B)(iv)

Telecommunications Act of 1996

Sec. 253(b)

Sec. 601

Sec. 704

Rule and Order in ET-Docket 93-62,

reported in

Notice FCC 96-326

found at 11 F.C.C Red 15123 (1996)

Q

Second Memorandum Opinion and

Order in ET-Docket 93-62

Found at

12 F.C.C. Red 13494(1997)

Other:

ANS] C95.1-1982 RF standards

ANSI C95.1-1992 RF standards

1”

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue

to review the judgment below.

OPINIONS AND JUDGMENTS BELOW

On August 1, 1996 the Federal Communications

Commission (“FCC”) released its final order Report And

Order (“R&O”) regarding FCC ET Docket 93-62 in the

matter of Guidelines for Evaluating the Environmental Ef-

fects of Radiofrequency Emissions (“RF Guidelines”).

This was reported in FCC Notice 96-326 and at 11 F.C.C.

Red. 15123 (1996). On August 25, 1997, FCC released

notice FCC 97-303 which contained its second final order

on this matter and is reported at 12 F.C.C. Red 13494

(1997).

The original opinion of the United States Court of

Appeals for the Second Circuit which reviewed the above

orders is reported as Cellular Phone Taskforce v. FCC, 205

F.3d 82 (2nd Cir. 2000). It is reproduced at Appendix A-1,

in the Appendix A submitted with a Petition for Writ of

Certiorari by counsels Whitney North Seymour, Jr. and Pe-

ter J. Clines of the law firm Landy & Seymour in behalf of

Citizens For The Appropriate Placement of Telecommuni-

cations Facilities and other parties to the above Court of

Appeals proceeding whose judgment is the subject of this

and their petition (“App. A”). The Opinion by the Second

Circuit denying the petition for rehearing by the Cellular

Phone Taskforce (“CPT”) is reproduced at App. A-23.

11

The Opinion by the Second Circuit denying the petition for

rehearing by the Communications Workers of America is

electronically reported at 2000 WL 862305 and reported

herein at A-26.

Because of their voluminous nature, copies of the

above FCC Orders have been lodged with the Clerk of this

Court in conjunction with the above mentioned Petition for

Writ of Certiorari submitted by the law firm Landy & Sey-

mour. Also because of their voluminous nature, standards

referenced in 47 CFR 1.1307(b)(4)(i) and (ii) that the First

Final order established to apply during a transition period

are also lodged with the Court as well FCC OST Bulletin

No. 65 and OET Bulletin No. 65 that describe how compli-

ance with the standards in 47 CFR 1.1307(b)(4)() and (ii),

respectively, may be met.

JURISDICTION

On February 18, 2000, the Court of Appeals af-

firmed the above two challenged final orders of the FCC,

in which it upheld the validity of the statutory and regula-

tory provisions in question. The Court of Appeals denied

the timely filed petition of Cellular Phone Taskforce on

June 6, 2000 (A-23), and denied the timely petition for re-

hearing by the Communications Workers of America on

June 15, 2000 (A-26). Pursuant to Supreme Court Rule 13,

this petition is timely filed within 90 days of that latter pe-

tition. This Court has jurisdiction under 28 U.S.C. Sec.

1254(1).

Standing of Petitioner:

Mr. Fichtenberg has a Master of Biostatistics and

Master of Public Health degree from the University of

19

California at Berkeley. He has participated in the FCC

rule-making proceeding below with his earliest letter dated

December 10, 1995 raising concerns about adverse health

effects from RF radiation and proposing FCC RF regula-

tion changes. It is in the FCC record of this proceeding.

[See Second Ciruit Joint Appendix (“JA”) at 578]. In Sep-

tember 1996, he submitted on behalf of Ad-Hoc Associa-

tion an accepted Petition for Reconsideration to the FCC

pertaining to its First Order [JA 890] and subscribed to it in

behalf of the (State of) Washington Council For Safe Wire-

less Technology [JA 901].

In the above Petition, Mr. Fichtenberg noted his

children attended a school, Northwest Yeshiva High

School on Mercer Island, Washington on whose property a

cellular tower was to be erected [JA 909]. Subsequently,

the cellular tower was erected within 20 feet of the

school’s property and is there now. As a donor, past mem-

ber of its Education Committee, and member of the

- school’s community organization, Mr. Fichtenberg seeks to

educate the school’s leaders of the possible health risks and

structural modifications to attenuate the signal that he be-

lieves should be considered. He is harmed in these efforts

because the leaders rely on the FCC’s findings that “There

is no evidence to suggest that transmitters or facilities that

comply with our guidelines will cause adverse health ef-

fects.” [Notice FCC 97-303, par. 111]. Had the FCC had

the studies and the analyses Mr. Fichtenberg submitted to

the FCC been evaluated by those with expertise in RF

health matters, it is very likely the FCC would have been

informed the opposite of its conclusion is true. A favor-

able decision by this Court that such comment should be

considered will make Mr. Fichtenberg’s efforts to protect

his school easier.

Mr. Fichtenberg does not visit his friend, Boris

nm —

13

Makovoz (who lives in a second floor apartment at 5111

South Dawson, Seattle, Washington, 98118) as often as

Mr. Fichtenberg would like, nor does he stay for such Visits

as long as he would like. This is because there is a wire-

less telecommunications facility on the roof-top of a one

story retail business adjoining Mr. Mokovoz’s apartment.

This facility approximately the same height of Mr. Mako-

voz’s appartment and within 25 feet of it. As a result, mi-

crowave radiation close to the main beam of the transmitter

may irradiate through a large glass window into Mr. Mako-

voz’s apartment. I believe that a favorable decision by this

court will increase the chance that the apartment owner

will be made aware of the need to keep exposure as low as

reasonably achievable and so take measures to attenuate

the signal. Mr. Fichtenberg would then visit his friend

more often and stay longer.

Mr. Fichtenberg rides to work in a vanpool and also

rides public transit regularly each month where he is ex-

posed within 3 feet of users of cellular phones. Had the

FCC adopted the ALARA policy, it would be easier for

him to convince others not to use a cellular phone so close

to his person. Also, he lives within 400 feet of wireless

telecommunications transmitters on a roof-top in a valley

along which is a commercial street.. His hillside home is

about the same vertical level as the transmitters and so he

is exposed to its horizontal main beam. Had the ALARA

policy been adopted by FCC, it is possible that alternative

sites near the tops of hills, instead of in a valley could have

been selected for the transmitter, thereby reducing his RF

exposure. If the FCC will adopt ALARA, then it will be

easier for Mr. Fichtenberg to seek a re-location of the

transmitters.

Mr. Fichtenberg has been spokesperson for Ad-Hoc

Association of Parties Concerned About the Federal Com-

14

munications Commission Radiofrequency Health and

Safety Rules (“Ad-Hoc Association”) since it formed

shortly before he filed with the FCC a Petition for Recon-

sideration in behalf of Ad-Hoc Association and which was

subscribed to by other parties. Note that some other parties

subscribing to this September 1996 Petition for Reconsid-

eration to the FCC, such as Cathy-Bergman-Venzia, at

Second Circuit Joint Appendix (“JA”) 905, JA 0914, and

Marija Hughes at JA 906, as well as at JA 0915 and 6038-

6060 (where she describes how she has been affected by

RF radiation) are now petitioners in the Petition for Writ of

Certiorari noted above submitted by counsels Whitney

North Seymour, Jr. and Peter J. Clines.

As President of Ad-Hoc Association Mr. Fichten-

berg was on its founding Board when it registered with the

State of Washington as a non-profit organization (Uniform

Business ID # 601-796-186) on June 6, 1997 (App. C _).

Jt continues to be a duly authorized Washington non-profit

corporation (App.C +). ~Section #4 of the Articles of In-

corporation of Ad-Hoc Association describe its mission

which Mr. Fichtenberg seeks to carry out, as part of his du-

ties as President. His duties include carrying out the Ad-

Hoc Association mission of:

“educating and informing workers and the public

about the biological, health, safety, and environ-

mental effects and legal issues associated with

NIER (non-ionizing electromagnetic fields.”

To achieve this mission, Mr. Fichtenberg spoke, for

example, at a forum in a hearing room of the U.S. Senate

in March 1999, and as recently as August 2000 spoke on

an Indiana radio show on why the FCC conclusions are in-

adequate. As spokesperson for Seattlites for Appropriate

Antennas in our Neighborhoods (SAANEB), he led a legal

challenge of the adequacy of proposed City of Seattle tele-

oO A ECC PT RR SANS Lh CORA MEL er 9

14

communications amendments, and is now in discussions

with the City of Seattle on this matter.

In November 1996, Mr. Fichtenberg, the Ad-Hoc

Association and several other parties submitted Petitions

for Judicial Review to the United States Court of Appeals.

(see List of Parties naming Mr. Fichtenberg in proceeding

below). In the Principal and Reply Brief of Ad-Hoc Asso-

ciation in which Mr. Fichtenberg joined in submitting to

the Second Circuit (see App. C-3), Mr. Fichtenberg chal-

lenged as arbitrary certain FCC discretionary decisions as

well as challenging that FCC exceeded its statutory author-

ity or that the statute it relied upon to preempt local public

health RF regulations were unconstitutional.

All of the Questions Presented above by Mr.

Fichtenberg pertain to issues that were raised in the chal-

lenged FCC proceeding below and before the proceeding

before the Untied States Court of Appeals For The Second

Circui. The FCC decisions associated with these questions

adversely affect Mr. Fichtenberg and a favorable decision

by this Court would give Mr. Fichtenberg relief. So these

Questions Presented have standing to be considered in this

Petition for Writ of Certiorari. Specifically:

- The issue of whether the Commission should have

sought a response from its advising federal health agen-

cies to the requests to modify the FCC rules based on

RF health considerations was discussed in the record in

the Ad-Hoc Association et al. Petition for Reconsidera-

tion to the FCC (“AHA Recon.”) (JA 0878-0879, Item

5, “Considering views of health agencies”). FCC notes

this Ad-Hoc Association request (Notice FCC 97-303,

par. 25) and describes why it did not ask its advising

federal health agencies for advice on how to respond to

the requested modifications of Ad-Hoc Association at

14

FCC Notice 97-303, Par.#29-39. It was raised in the

Ad-Hoc Association et al. brief Mr. Fichtenberg joined

(DF Brief) at ?? and discussed in the Opinion at A-??

The question of whether the FCC should adopt the re-

quirement that exposure be “as low as reasonably

achievable” (ALARA), was raised in the FCC proceed-

ing in the AHA Recon. at 18, and by Mr. Fichtenberg

comments to FCC of Oct. 8, 1996 (JA 1018). FCC

notes this at FCC 97-303, par #25. It is discussed in the

Opinion at A-.??

Whether FCC met its NEPA requirements is raised

throughout the petitions for reconsideration of Ad-Hoc

Association and Cellular Phone Taskforce.

Whether ‘health effects’ are within ‘environmental ef-

fects’ regarding FCC preemption authority over the sit-

ing and operation of FCC licensed facilities is raised at

AHA Recon at JA 887-888, Item #15 and by Mr.

Fichtenberg in his Oct. 8, 1996 comments to FCC at JA

1008-1012. It is discussed in the DF Brief at and Re-

ply at. The Opinion states Congress’ intent to include

health regulations within the FCC preemption at Opin-

ion A

Whether FCC was given improper delegated authority

to preempt local wireless siting and operation regula-

tions to protect the environment or the public health is

discussed also JA 887-888 and at 1008-1012. The is-

sue of whether FCC had proper delegated authority was

explicitly raised in the Cellular Phone Taskforce Brief

The Second Circuit affirmed FCC’s preemption

CAG I NA A ORE 8 EE LE I

17

authority was properly delegated at Opinion A

Whether the above preemption violates the 10" amend-

ment, even when delegated to an agency with expertise

in the matter was raised, for example, by Second Cir-

cuit petitioner Jerry Davis in his February 15, 1995 let-

ter to the FCC. He said such preemption “overide(s)

the 10th amendment” and that, “There is not sufficient

justification for the FCC to control rulemaking and

threaten the health, safety, and welfare of citizens by

prohibiting reasonable regulations brought on by state

and local officials.” [JA 6138]. Note: Mr. Davis is now

represented in the Petition for Writ of Certiorari sub-

mitted by counsels Seymour and Clines discussed

above. The Opinion discusses this issue at A-??.

18

For the above reasons, if the Court will find in favor

of the challenges raised in this petition, then I will get help-

ful relief.

Moreover, the harms above meet standing criteria

as given in Friends of the Earth, Inc. v. Laidlaw Services

(TOC) Inc. 120 S.Ct. 693, 145 L.Ed2 610 |

CONSTITUTIONAL AND STATUORY PROVISIONS

INVOLVED

As most of the citations are lengthy, the relevant point of

the statute is noted here and in the Appendix A submitted

by counsels Seymour and Clines noted above, or the text is

in Appendix B.

- Constitutional provisions:

Article 1 Section 1, Article 1 Section 8, paragraph 18,

Amendment One, Five, and Ten [at Appendix A-28]

Amendment Two: A well regulated Militia, being nec-

essary to the security of a free State, the right of the

people to keep and bear Arms shall not be infringed.

Statutory and Regulatory Provisions:

- 5U-.S.C. Sec. 500

- 15 U.S.C. Sec. 2602(6): Disjunctively mentions and so

distinguishes between “health” and “environment”

- 280U.S.C sec. 1254(1)

- 29U.S.C. 701

———————— —

a A RON SORRY OL A

19

47 U.S.C. 405 see App. B

47 U.S.C 324 see App. B

40 CFR Chapter V (7-1-96 Edition) Sec. 1506.6 Public

Involvement

(a) [Agencies shall] Make diligent efforts to involve

the public in preparing and implementing their

NEPA procedures.

42 U.S.C. Sec. 2021(h): Establishes the Environmental

Protection Agency as responsible for being expert on

radiation matters

42 U.S.C. 4332 in relevant part, see A-32

42 U.S.C. Sec. 7412(a) subsections (6) and (7) distin-

guish between “hazardous pollutants” [subsection (6)]

that are adverse to human health vs. “adverse environ-

mental effects”.[subsection (7)]

42 U.S.C. Sec. 7412(b)(2) — Describes how a list of

pollutants hazardous to health is to be maintained based

upon evidence they pose “a threat of adverse human

health effects.” And states a substance should not be

on the list “solely due to its adverse effects on the envi-

ronment.”

Telecommunications Act of 1996 PL 104-104, 110 Stat

56, Sec 253 [see Appendix B-??]

and Sec. 704 [establishes 47 USC 332(c)(7),

including FCC preemption authority in 47 U.S.C.

332(c)(7)(B)(v)

mn

[See Appendix A submitted by counsels Seymour and

Clines, p. A-29 to A-31]

Describes local siting and land use control over cellular

phone tower and related facilities, including preemption of

local RF exposure regulations, and stipulates that FCC

complete its NEPA rule-making on impact on the environ-

ment from RF emissions from FCC facilities.

American National Standards Institute (ANSI) C95.1-1982

and C95.1-1992 lodged with the Court

Guidelines for Evaluating the Environmental Effects of

Radiofrequency Radiation, 8 F.C.C. Red. 2849, 1993 WL

757412 (1993) [Notice of Proposed Rule Making in FCC

ET-Docket 93-62]

Report and Order in ET-Docket 95-62, 11 F.C.C. Red.

15123 (1996), and reported as notice FCC 96-326

Second Memorandum Opinion and Order in ET-Docket

93-62, and reported as notice FCC 97-303, and

Notice of Proposed Rule Making in the Matter of Review-

ing Requests for Relief from State and Local Regulations

Pursuant to Section 47 U.S.C. 332(c)(7)(B)(v) of the Com-

munications Act of 1934 as amended, FCC WT Docket 97-

197 (later referred to as WT Docket 97-192

In 12 F.C.C. Red. 13494 (1997)

47 CFR 1.1307(b)(4)

STATEMENT OF THE CASE

71

BACKGROUND:

Among the early efforts of Congress to minimize

adverse impacts from the strength of radio frequency (RF)

radiation, a known impact then being RF interference, was

its establishing the policy that

“In all circumstances, except in case of radio com-

munications in distress, all radio stations, including

those of the United States, shall use the minimum

power necessary to carry out the communications

desired.” [47 U.S.C. 324, established 1934] [App.

B-??]

In response to an earlier statute, Regulation 24 of

Sec. 54 of Title 47, which used the word “energy” instead

of “power”, a U.S. Attorney General opinion stated that

“(T]he Secretary of Commerce was not given the

authority to determine in advance what this minimum

amount should be for every case * * *” [35 Op. Atty.

Gen, 126 (1926).

In 1985, for FCC to meet its National Environ-

mental Policy Act (“NEPA”), requirements, it considered

the impacts of RF radiation from the facilities of its licen-

sees and adopted the 1982 standard for human exposure to

RF radiation of the American National Standards Institute

(“ANSI”), designated as ANSI C95.1-1982 (“ANSI 1982”)

[Second Circuit Opinion (“Opinion”) at A-l. This FCC

standard (now lodged with the Court) set required that,

“Where exposure conditions are not precisely

known or controlled, exposure reduction should be

accomplished by reliable means to values as low as

reasonably achievable.” (called “ALARA”) [ANSI

1982, p.11, and in AHA Brief at |

oe)

In its instructions of how to comply with ANSI

1982, called OST Bulletin No. 65, FCC noted (at page ??

of this bulletin) the ALARA requirement of ANSI 1982.

In 1986 the Nationa) Council on Radiation Protec-

tion and Measurements adopted an RF guideline, and in

1993, after ANSI revised its RF standard in 1992, FCC

opened a Notice of Proposed Rule Making in ET Docket

93-62 to update its RF NEPA guidelines [Opinion A3-4]

The FCC recognized there was conflict amongst

scientific organizations on what the proper RF standard

should be, and made a policy decision to generally defer to

the advice of the federal health agencies [Opinion A-9].

FCC issued its RF guidelines in its first final rule, Rule &

Order, in August 1996 [Opinion A-4].

During the intervening 6 years FCC said that no

consideration was given to public comments on how RF

health studies should impact FCC RF guidelines. FCC

stated this was because,

“[The] guidelines are based on recommendations of

expert organizations and fede~al agencies with responsibili-

ties for health and safety. It would be impractical for us to

independently evaluate the significance of studies purport-

ing to show biological effects, determine if such effects

constitute a health hazard, and th[en] adopt stricter stan-

dards than those advocated by our federal health and safety

agencies.” [Opinion A-9].

The Opinion noted that,

“{[EPA] had been on the verge of releasing

its own draft guidelines pertaining to the health ef-

fects of RF radiation in 1996. It was fully reason-

able for the FCC to expect the agency with primacy

in evaluating environmental impacts to monitor all

93

relevant scientific input into the FCC’s considera-

tion, particularly since EPA had been assigned the

lead role in RF radiation health effects since

1970.” [Opinion A-10].

Consistent with the FCC report and the Opinion

above, EPA confirmed in a May 1999 that EPA was not

asked to evaluate any of the material submitted into the

above FCC docket [App. B-??] This EPA letter was sent

May ??, 1999 by the Cellular Phone Taskforce counsel to

the Second Circuit per Fed. Rule of App. Proc. 28())

In its First Order (Report & Order) FCC recognized

a consensus of recommendations from its advising RF ex-

perts of the need to apply “limits for induced and contact

currents as a means of controlling potentially harmful ex-

posure to RF fields,” but FCC also noted that due to meas-

urement problems of this RF hazard that FCC would not

include requirements to protect from it:

“Although we are not adopting limits for induced

and contact currents in this proceeding, we recog-

nize the desirability for limits to be adopted in the

future, particularly if more accurate measuring in-

struments become available.” [Notice FCC 96-326,

par. 147]

After its First Order was issued in August 1996, the

Ad-Hoc Association and several other parties submitted, in

accordance with 47 U.S.C. 405, a Petition for Reconsidera-

tion to FCC seeking specific modifications of its First Or-

der [Opinion A-4, and see petition at JA (869-0906 with

exhibits at 0907-0974 .

There FCC found it that ‘health effects’ were within

7A

the scope of ‘environmental effects’ and that it would ap-

ply its preemption authority as provided in 47 U.S.C. 332

(c)(7)(B)(Giv). [FCC 96-326, par. 164-168].

Requests that FCC adopt the requirement that RF

exposures from the facilities of its licensees be kept “as

low as reasonably achievable were made [JA ,JA_ J and

noted by FCC [Notice FCC 97-303, par. #25]. FCC re-

jected requests for more stringent rules requested by Mr.

Fichtenberg, Ad-Hoc Association, and other parties.

[Notice FCC 97-303, 29-39.]

In its Second Memorandum Opinion and Order |

(2MOO) that appeared in notice FCC 97-303 in 12 F.C.C.

Red. 13494 (1997), FCC left substantially unchanged its

RF guideline exposure limits, including FCC not protecting

from induced and contact current hazards that FCC recog-

nized existed [see above comment on FCC 96-326, par.

147}. Recognizing its RF guidelines did not protect from

this hazard, FCC nevertheless reported,

“There is no evidence to suggest that transmitters or

facilities that comply with our new guidelines will cause

adverse health effects.” [Notice FCC 97-303, par. #111].

FCC also dismissed claims of Mr. Fichtenberg that

local public health RF exposure regulations of the

“operation” of FCC facilities could not be preempted by

FCC. [Notice FCC 97-303, par. #78-90]

Case Before the U.S. Court of Appeals for the Second Cir-

cuit

The Second Circuit Opinion affirmed the FCC in all

respects. Of particular note is the following:

- The Opinion agreed that there was no need for FCC to

get advice from its advising agencies on how to re-

oh

spond to submitted public comments and evidence that

more stringent RF rules were needed. The Opinion

agreed with FCC that since EPA was ‘on the verge of

issuing its own draft guidelines and was the federally

designated expert to monitor RF matters, that FCC

could rely on EPA to tell FCC if there was anything

new that FCC had not already been advised about from

the federal health agencies. [Opinion A10-A11].

- The Court supported [Opinion Al1-A12] as within

FCC discretion the FCC reversing its requirement in

ANSI C95.1-1982 that RF exposure be kept as low as

reasonably achievable [App. B-??].The Court also

agreed that FCC’s explanation that it balanced factors

weighing public health risks against the desires of effi-

cient telecommunications services was a sufficient ex-

planation.

- The Court agreed with FCC both on its reasons for not

protecting from the known hazards of induced and con-

tact currents [Opinion A??] and also with FCC’s con-

clusion that there was no evidence of harm if its RF ex-

posure guidelines were followed, permitting the FCC

essentially finding of no significant impacts [FONSI] if

its guidelines are followed.

- The Opinion likewise agreed that Congress intended

that FCC preemption authority included ‘health ef-

fects’ [A??] and that FCC had the authority to preempt

local public health RF exposure regulation of the opera-

tion of FCC facilities.

- It said there was no 10th amendment violation because

local jurisdictions were not required either to approve

or deny siting permits. [Opinion A??]

REASONS FOR GRANTING THE WRIT

IA

The first reason for granting the writ is that there are key

questions of law that impact not only this decision, but

have far reaching implications regarding:

- considering public comment when rule-makings are

mainly based on advising expert agencies

- the vitality of formal NEPA regulations

- if federal preemption authority can be delegated to

agencies who have little knowledge on the matter to be

preempted (regardless of Congress’s specificity of the

purpose guidelines for exercising the preemption, and

when the preemption touches on protecting health and

safety

As our modern world becomes more technologically

sophisticated and disciplines interconnected, it can be ex-

pected that federal agencies will lead rulemakings for

which they are not expert and where their decisions can

impact on human health and/or the environment.

In the tangled web of interagency decision making the

above issues desperately need clarification.

The second reason for granting the writ is that the miracles

and benefits of the wireless telecommunications revolution

is on the same par as the invention of the wheel, agricul-

ture, the machines of the industrial revolution, the car and

telephone, and computers. As with these technological

benefits there are also hazards.

The Opinion noted there was conflicting evidence

of adverse effects [A }. Briefs will give even more evi-

7

dence that there is a real cause for concern for the public

health. Given the enormity of the impact of this new tech-

nology on society, it is extremely important the public and

business community are assured that a ‘hard look’ was

given that assures law was properly followed when Con-

gress and the FCC established the framework for the devel-

opment and expanding of this technology over the coming

decades.

It is likely for the next decade or so that there may

not be another opportunity to review the rules for build-out

of this technology and how it will affect the exposure of

the public via cellular phones or base station facilities near

homes or workplaces. Also, since the build-out is happen-

ing now, this is the most timely time to address this matter

before even more is built that may later need to be

changed.

With regard to the particular questions raised, please con-

sider:

Question #1: On ‘dodging public comment’

This court ruled “The agency must examine the rele-

vant data” [Motor Vehicle Mfrs. Assn. vs. State Farm Mu-

tual, 49 U.S. 29, 43]. When a non-expert agency depends

on advising experts, then it must ask these experts for ad-

vice on how to respond to public comment, thereby provid-

ing the agency a way to “examine the relevant

data.” [Motor Vehicle Id. 43]

Likewise, NEPA requires, “[Agencies shall] Make dili-

gent efforts to involve the public in preparing and imple-

menting their NEPA procedures. [42 CFR Chapter V,

1506.??]. Clearly taking all public comment on a major

element of the rule-making and ‘putting it in a closed box’

PR

without any meaningful consideration is the exact opposite

of this requirement — and clearly NEPA rules anticipate

non-expert agencies being advised by expert federal agen-

cies like EPA.

If EPA were to have issued a Notice of Proposed Rule

Making similar to that of FCC, EPA could not ignore all

public comment questioning its decision and providing evi-

dence for more stringent rules. EPA could not say,

“We are expert, have an unlimited budget so we can get

and study all pertinent publications, and never misunder-

stand or overlook any important point — so we are ignoring

public comment.” All the more so would such agencies

need to respond if they were merely “on the verge” of issu-

ing internal draft guidelines.

So the FCC and Opinion rationale is contrary to

law. and if allowed to stand could allow non-expert and ex-

pert agencies together to dodge having to respond to public

comment. This is unlawful and contrary to the principles

of democratic government.

Likewise, in 47 U.S.C. 405, Petition for Reconsid-

eration, Congress explicitly provided for considering of

new information by the FCC, an agency which must ad-

dress rapid technological development. .

Question #2: On reversing past safety regulation and

Congressional policy in statute.

lt is a very simple matter to verify that previous

FCC RF guidelines of ANSI 1982 provided for following

the “as low as reasonably achievable” (ALARA) policy

and that FCC adopted this policy to apply during a transi-

tion period. 47 USC 324 described above arguably is simi-

lar, if not identical to the ALARA policy.

99

This Court has stated,

“{Ajn agency changing its course by rescinding a

rule is obligated to supply a reasoned analysis for the

change beyond that which may be required when an

agency does not act in the first instance.” [Motor Vehicle

Id. 42.

Moreover, FCC’s reversal of its ALARA policy is

arguably contrary to the policy of Congress in 47 USC 324

noted above that all radio facilities must make decisions so

that the RF power they need is minimized. This is all the

more reason FCC needs to explain its reversal and how it is

consistent with the long-standing policy established by 47

U.S.C. 324.

Finally, the Court accepted FCC’s explanation by

FCC merely reciting the words that it sought “ a proper

balance” for protecting the public and worker health vs. ef-

ficiency of telecommunication services. [Notice 97-303,

par. #2].

This Court has noted,

“{That policy making must account for uncertainty]

does not imply that it is sufficient for an agency merely to

recite the terms ‘substantial uncertainty” as justification for

its actions.” [Motor Vehicles Id. 52]

Does FCC merely reciting it sought “a proper bal-

ance” also qualify a merely reciting empty phrases. For

nowhere does FCC document what factors were put in its

“balance”, how it was done or what were the results. To

verify this the Court needs merely to turn to the context of

the FCC defense at Notice 97-303, par. #2.

Similarly, in the tangled-web of interagency advi-

sors, we find the FCC and the Second Circuit Court [at

A11] relied on the EPA assessment that the “[RF health’

effects information is not yet sufficient to be used as an ex-

posure criteria to protect the public against adverse human

health effects [of RF]”.

20

if EPA were to have issued its own regulations with

a justification that recited “not yet sufficient information”

would this Court reject this reciting as it did the term

“substantial uncertainty” in Motor Vehicles above? [Id. at

52]

Can advising agencies thus recite assessment opin-

ion without documeniation, and then allow public com-

ment to be ignored, shielding the advising agency from.re-

sponding, and still having its opinion drive a rule-making

decision?

EPA offered no analysis, no data, no documenta-

tion, and of course there was none for the Opinion to cite

[see Al 1]. :

Does the mere reciting of “proper balance” by FCC

and “not yet sufficient information” by advising EPA merit

the same response of this Court as in Motor Vehicles

which stated,

“unless we make the requirements for administra-

tive action strict and demanding, expertise, the strength of

modern government, can become a monster which rules

with no practical limits on its discretion.” [Motor Vehicles

Id. 48]

Just how the Court will make requirements for ac-

tions when there is a tangled web of non-expert lead agen-

cies relying on expert agencies is therefore in much need of

resolution by this Court. |

The issue chosen to examine this, whether the FCC

properly reversed its ALARA policy through a “proper bal-

ance” is worthy of this Court’s attention. This is because

the continuance of this FCC previous policy and policy in

47 USC 324 can play a major role in driving the develop-

ment of an effective wireless telecommunications infra-

structure that includes the beneficial high quality service of

providing products and ambient RF exposure that is as low

31

as reasonably achievable. This effort to minimize RF ex-

posure may indeed be considered as one of the improve-

ment in high quality services the Telecommunications Act

of 1996 sought.

Question #3: Did FCC do a functionally equivalent

NEPA? Is this even an option for agencies not expert in

the health or environment matter of the rule-making?

As noted above per Question #1, NEPA requires involving

the public which did not happen here — since public com-

ment how RF health adverse effects evidence supported

more stringent rules was ignored.

It is still worthwhile to note that the Opinion found

as justifying the ‘functional equivalent’ argument the stan-

dard of the Court of Appeals for the District of Columbia.

The Opinion noted that “when an agency is engaged pri-

marily in an examination of environmental questions” and

also meets other criteria, that it may meet its NEPA com-

pliance by actions that are ‘functionally equivalent’ to

NEPA.

The Opinion also noted that FCC has no health or

environmental expertise. If agencies without acknowl-

edged expertise in health or environment are yet found to

be “engaged primarily in an examination of environmental

questions” — then ‘black is white’, ‘up is down’ and the vi-

ability of Congress’ policy for formal NEPA requirements

is dead.

Because of the enormity of impact on the death of

NEPA this decision may have, this question is also worthy

of the being considered by this Court.

Question #4: Was there a proper delegation of author-

39

ity to FCC to preempt either environmental or health

effects per 47 U.S.C. 332(c)(7)(B)(iv)?

The Supreme Court recently gave the applicability

of J.W. Hampton, Jr. & Co. v. United States a new vitality

when it recently cited the case in Mistretta v. United States,

488 U.S. 361 (1989). In Hampton the Court states,

“If such a power [fixing railway rates] is to be exercised at

all, it can only be satisfactorily done by a board or commis-

sion, constantly in session, whose time is exclusively given

to the subject * * *” [Hampton Id. at 408]

If such is the requirement of preemption power to

fix railway rates, all the more so it applies when preempt-

ing local regulations to protect public health or the envi-

ronment.

This makes sense. We do not ask a computer pro-

grammer to do a heart surgery, no matter how many doc-

tors he may consult. Only experts in a subject can best un-

derstand the information they are given, say through public

comment, and how best to consider and apply it. All the

more so in our technological age, must Congress delegate

any preemption authority only to those who are expert on

the subject.

Question #5 Are ‘health effects’ part of ‘environmental

effects?’ for the purposes of FCC preemption authority

in 47 U.S.C. 332(c)(7)(B)(iv).

This Petition adopts the same statements of the Case and

Reasons for granting the requested writ on this question as

Petitioner Michael C. Worsham in his timely filed petition

on this question , and in the interests of efficiency his text

will incorporated here by reference to his petition for writ

in this same matter.

33

It should be emphasized that no doubt some mem-

bers of Congress sought to preempt local health regulations

through innuendo and implication by use of the more

amorphous phrase ‘environmental effects’. We need to

call a dog “a dog” and a cat “a cat”. If members of Con-

gress intend to preempt regulations to preempt protecting

the public health of their constituents, then they must do su

openly and clearly, and not ‘hide behind’ vague terms like

‘environmental effects’ which in three court decisions was

interpreted differently.

(1) One court said the term “environmental effects” was

undefined in the above preemption section. [Freeman

v. Burlington Broadcasters, Inc. 204, F3d 311 (2" Cir.

2000] see Michael Worsham petition on section Cof-

licting Federal Court Decisions)

(2) One court stated that, “While it is clear from the record

that the City of Moline considered potential health ef-

fects of the tower, it is less clear that they considered

environmental effects.” [lowa Wireless Services, L.P.v.

City of Moline, Ill. 29 F.Supp. 2d 915 (C.D. Ill, 1998).

(3) The Opinion in the instant case stated its agreement

with the FCC interpretation that the statute in question

preempted local regulation of RF “on the basis of the

health effects of RF radiation.” [Opinion A5]. As

noted by Mr. Worsham, while federal agencies have

discretion to imply meaning to vague phrases, this dis-

cretion is curbed when the Act establishing the statute

forbids implied preemption, as does Sec. 601. Also

this Court has curbed agency discretion to imply pre-

emption of local health and safety regulations, and in-

stead has insisted on a higher standard where Congress

must explicitly preempt.

“As a matter of statutory construction, congres-

sional intent to displace local laws in the exercise of

34

the commerce power is not, in general, to be in-

ferred unless clearly indicated by those considera-

tions which are persuassive of the statutory purpose.

This is especially the case when public safety and

health are concerned.” [Mauer vs Hamilton, 309 U.

S. 598, 614; 84 L.Ed 969, 980]

“Where . . . the field that Congress is said to have

preempted has been traditionally occupied by the

States ‘we start with the assumption that the his-

toric police powers of the States were not to be su-

perceded by the Federal Act unless that was the

clear and manifest purpose of Con-

gress.” [Hillsborough County v. Automated Medi-

cal Labs, 471 U.S. 707; 85 L. Ed. 2d 714, 722

(1985)

Although federal courts may disagree how to apply

law, which a higher court may resolve, here we have exam-

ples of courts disagreeing on what a word. This is clear

evidence that meets the standard that,

“A statute will be held void for vagueness if the

conduct forbidden by it is so unclearly defined that persons

of common intelligence must necessarily guess at its mean-

ing and differ as to its application.”

[Connally v. General Construction Co. 285 U.S. 385]

“Regulation is void for vagueness if it is so indefi-

nite that ordinary people cannot understand that which it

prohibits.” [Pro-choice Network v. Schenck, 67 F.3d 359,

vacated in part on rehearing en banc 67 F3d 377, certiorari

granted 116 S.Ct. 1260, 134 L.Ed. 2d 209, affirmed in part,

reversed in part 117 S.Ct. 855, 137 L.Ed 2d. 1.]

“Regulation is unconstitutionally vague if it fails to

34

give a person of ordinary intelligence reasonable opportu-

nity to know what is prohibited.” [Thomas v. Hinson, 74

F3d. 888 (8"" Circuit, 1996]

Moreover, when we look at the legislative record, we

see enough signs and ‘muddy waters’ so that the required

‘clear intent’ of Congress is missing. Specifically:

- Congress did not preempt the entire field of RF expo-

sure control as some parties wanted, but only of

‘personal wireless services.’

- As we move from the House version of the preemption

to the Joint House/Senate compromise Conference Re-

port, we find a clear move away from preempting local

public health regulations.

Specifically, The House Report sought “uniform, con-

sistent requirements, with adequate safeguards of the pub-

lic health and safety, be established as soon as possi-

ble.” [H. Rep. 104-204, 104" session 94-95 (1995).

However, in the Joint Senate House Conference re-

port all mention of health and safety was removed. Thus,

the intelligible principle for preemption in the House Re-

port was removed — with nothing to take its place except

that FCC should finish its NEPA rule-making. This only

required the FCC to consider environmental impacts, but

gave no intelligible principle on how to apply its findings

for decision making.

Question #6: Did the FCC preemption violate the 10"

amendment due to commandeering the states and local ju-

risdictions to run a federal program?

34

Choice ends where liability begins.

In New York vs United States 505 U.S. 144 (1992)

this Court decided that when a party has either the option

of being forced to run a federal program or take on a liabil-

ity (title to nuclear waste) then the result is commandeering

of state or local government. In Petersburgh Cellular Part-

nership v. Board of Supervisors, 205 F.3d 688 (4" Cir.

2000) Circuit Judge Niemeyer explained the disastrous

consequences of a jurisdiction abandoning the field of zon-

ing and permitting wireless telecommunications facilities.

Moreover, not only would there be a high risk for a dete-

rioration neighbor quality of life and consequent property

value, but also of danger to life and property due to falling

towers or, more likely, electrical fire due to not inspected

electrical systems. Since such dangers of risk to property

are so obvious and there is no benefit to the community by

so abandoning, that any jurisdiction that reverses its pre-

sent course of zoning and permitting such facilities puts it-

self at liability risk [see extensive discussions in Owen Vv.

City of Independence, 445 U.S. 622 (1980); Paratt v. Tay-

lor 451 U.S. 527 (1981) and City of Canton v. Harris, 489

U.S. 378 (1989) discussing ‘deliberate indifference’. Thus,

the typical immunity that local jurisdictions enjoy when

making policy decisions is lost when the dangers are clear

and the benefits nil from abandoning zoning and permitting

of wireless facilities.

Such lack of real choice amounts to de facto commandeer-

ing. Moreover, since there is no federal zoning and permit-

ting program the following applies:

“In view of the efforts of governmental bodies eve-

rywhere to mitigate the destruction of life, limb, and prop-

erty resulting from the use of motor vehicle, it cannot be

inferred that Congress intended to supersede any State

safety measure prior to the taking effect of a federal meas-

47

ure found suitable to put in its place. H.P. Welch Co. v.

New Hampshire, 306 U.S. 79-85 83 L.Ed 500 at 505.

Also consider Printz v. United States, 521 U.S. 898

(1997). It would have made no difference in the Supreme

Court’s decision had Congress passed an act of slightly dif-

ferent wording — such as that the States were commanded,

that “if they had a Chief Law Enforcement Officer

(CLEO), then the Brady Act requirements (found unconsti-

tutional) would be required.

Would the Second Circuit say there is a choice to

abandon law enforcement to avoid the act’s requirement if

there is a CLEO and so there is no real commandeering?

Such abandonment of law enforcement is no real choice.

The Second amendment notes that a militia is “necessary

to the security of a free State.” [App. B-??]. Just as the

chaos due to no law enforcement endangers the security of

a free State, so too would the chaos that Judge Niemeyer

describes.

There are examples of many court cases where fed-

eral district and appellate court decisions that find local ju-

risdictions applied RF health considerations more stringent

than those of the FCC and so denied a permit — and pro-

vided relief by compelling the permits be issued.

See Cellular Telephone Co. v. Town of Oyster Bay, 166

F.3d 490 (2™ Cir. 1999); lowa Wireless Services, L.P. v.

City of Moline, Ill. 29 F.Supp. 915 (C.D.II] 1998); Omni-.

point Corp. v. Zoning Hearing Bd. Of Pine Grove, TP 20

F.Supp. 2d 875, 881-92 (E.D. Pa. 1998); Illinois RSA No.

3 v. County of Peoria, 965 F. Supp. 732, 747, (C.D. Ill.

1997); BellSouth Mobility Inc. v. Gwinnett County Geor-

gia, 944 F. Supp. 923, 929 (N.D. 1996).

aR

One would think in such case, the Court might rule

the jurisdiction’s denial void and to either: (1) allow the

wireless facility to be constructed without any governmen-

tal supervision, as the Opinion suggests is the ‘choice’ of

local jurisdictions. But, as noted this is no real choice that

any responsible person could make, and of course includ-

ing the courts.

Or the courts might designate a federal agency to

run a federal program to review the zoning and permit is-

sues, assuring safe construction, etc.

But, as Seymour and Clines show, the courts have

compelled the local jurisdictions to issue the permits, and

allows the federal government to stand back while local of-

ficials are commandeered and take the anger of their con-

stituents. This is exactly what New York and Printz said

was unconstitutional commandeering.

Conclusion:

For the above reasons this petition for a writ of cer-

tiorari should be granted.

Respectfully 74, A Mes

David Fichtenberg

Date: September 13, 2000

390

APPENDIX B

15 U.S.C. Sec. 2602(6):

The term “health and safety study” means any study

of any effect of a chemical substance or mixture on

health or the environment or both, including under-

lying data and epidemiological studies of occupa-

tional exposure to a chemical substance or mixture,

toxicological clinical, and ecological studies of a

chemical substance or mixture, and any test per-

formed pursuant to this chapter.

42 U.S.C. Sec. 2021(h):

Consultative, advisory, and miscellaneous functions

of Administrator of Environmental Protection Agency.

The Administrator of the Environmental Protection

Agency shall consult qualified scientists and experts in ra-

diation matters, including the President of the National

Academy of Sciences, the Chairman of the National Com-

mittee on Radiation Protection and Measurement, and

qualified experts in the field of biology and medicine and

in the field of health physics. The Special Assistant to the

President for Science and Technology, or his designee, is

authorized to attend meetings with, participate in the delib-

erations of, and to advise the Administrator. The Adminis-

trator shall advise the President with respect to radiation

matters, directly or indirectly affecting health, including

guidance for all Federal agencies in the formulation of ra-

diation standards and in the establishment and execution of

cooperation with States. The Administrator shall also per-

form such other functions as the President may assign to

him by Executive order.

4n

42 U.S.C. Sec 7412(a) subsections (6) and (7)

(6) Hazardous air pollutant. The term ~*hazardous

air pollutant” means any air pollutant listed pursuant to

subsection (b) of this section.

(7) Adverse environmental effect The term

‘‘adverse environmental effect" means any significant and

widespread adverse effect, which may reasonably be an-

ticipated, to wildlife, aquatic life, or other natural re-

sources, including adverse impacts on populations of en-

dangered or threatened species or significant degradation

of environmental quality over broad areas.

42 U.S.C. Sec. 7412(b)(2):

(2) Revision of the list The Administrator shall peri-

odically review the list established by this subsection and

publish the results thereof and, where appropriate, revise

such list by rule, adding pollutants which present, or may

present, through inhalation or other routes of exposure, a

threat of adverse human health effects (including, but not

limited to, substances which are known to be, or may rea-

sonably be anticipated to be, carcinogenic, mutagenic, tera-

togenic, neurotoxic, which cause reproductive dysfunction,

or which are acutely or chronically toxic) or adverse envi-

ronmental effects whether through ambient concentrations,

bioaccumulation, deposition, or otherwise, but not includ-

ing releases subject to regulation under subsection (r) of

this section as a result of emissions to the air. No air pollut-

ant which is listed under section 7408(a) of this title may

be added to the list under this section, except that the pro-

hibition of this sentence shall not apply to any pollutant

which independently meets the listing criteria of this para-

graph and is a precursor to a pollutant which is listed under

section 7408(a) of this title or to any pollutant which is ina

41

class of pollutants listed under such section. No substance,

practice, process or activity regulated under subchapter VI

of this chapter shall be subject to regulation under this sec-

tion solely due to its adverse effects on the environment.

Telecommunications Act of 1996, PL 104-104

To promote competition and reduce regulation in order to secure

lower prices and higher quality services for American telecommunica-

tions consumers and encourage the rapid deployment of new telecommu-

nications technologies. [from Introduction]

47 U.S.C. Sec. 253(b):

State regulatory authority: Nothing in this section

shall affect the ability of a State to impose, on a competi-

tively neutral basis and consistent with section 254 of this

title, requirements necessary to preserve and advance uni-

versal service, protect public safety and welfare, ensure the

continued quality of telecommunications services, and

safeguard the rights of consumers.

47 U.S.C. 324 Use of Minimum Power

In all circumstances, except in case of radio com-

munications or signals relating to vessels in distress, all ra-

dio stations, including those owned and operated by the

United States, shall use the minimum amount of power

necessary to carry out the communications desired.

47 U.S.C. Sec. 332(c)(7)(B)(iv) (established by the Tele-

communications Act of 1996, Sec. 704):

4?

No state or local government or instrumentality

thereof may regulate the placement, construction, and

modification of personal wireless services facilities on the

basis of the environmental effects of radio frequency emis-

sions to the extent that such facilities comply with the

Commission’s regulations concerning such emissions.

47 U.S.C. 405 Petition for Reconsideration; procedure; dis-

position of time of filing; additional evidence; time for dis-

position for reconsideration of order concluding hearing or

investigation; appeal of order

47 U.S.C. 405. Petition for reconsideration; procedure; dis-

position; time of filing; additional evidence; time for dispo-

sition of petition for reconsideratior of order concluding

hearing or investigation; appeal of order.

(a) After an order, decision, report, or action has been

made or taken in any proceeding by the Commission, or by

any designated authority within the Commission pursuant

to a delegation under section 155(c)(1) of this title, any

party thereto, or any other person aggrieved or whose: inter-

ests are adversely affected thereby, may petition for recon-

sideration only to the authority making or taking the order,

decision, report, or action; and it shall be lawful for such

authority, whether it be the Commission or other authority

designated under section 155(c)(1) of this title, in its dis-

cretion, to grant such a reconsideration if sufficient reason

therefor be made to appear. A petition for reconsideration

must be filed within thirty days from the date upon which

public notice is given of the order, decision, report, or ac-

tion complained of. No such application shall excuse any

person from complying with or obeying any order, deci-

sion, report, or action of the Commission, or operate in any

EE ee

43

manner to stay or postpone the enforcement thereof, with-

out the special order of the Commission. The filing of a pe-

tition for reconsideration shal] not be a condition precedent

to judicial review of any such order, decision, report, or ac-

tion, except where the party seeking such review (1) was

not a party to the proceedings resulting in such order, deci-

sion, report, or action, or (2) relies on questions of fact or

law upon which the Commission, 6: designated authority

within the Commission, has been afforded no opportunity

to pass. The Commission, or designated authority within

the Commission, shall enter an order, with a concise state-

ment of the reasons therefor, denying a petition for recon-

sideration or granting such petition, in whole or in part, and

ordering such further proceedings as may be appropriate:

Provided, That in any case where such petition relates to an

instrument of authorization granted without a hearing, the

Commission, or designated authority within the Commis-

sion, shall take such action within ninety days of the filing

of such petition. Reconsiderations shall be governed by

such general rules as the Commission may establish, ex-

cept that no evidence other than newly discovered evi-

dence, evidence which has become available only since the

original taking of evidence, or evidence which the Com-

mission or designated authority within the Commission be-

lieves should have been taken in the original proceeding

shall be taken on any reconsideration. The time within

which a petition for review must be filed in a proceeding to

which section 402(a) of this title applies, or within which

an appeal must be taken under section 402(b) of this title in

any case, shall be computed from the date upon which the

Commission gives public notice of the order, decision, re-

port, or action complained of. (b)(1) Within 90 days after

receiving a petition for reconsideration of an order con-

cluding a hearing under section 204(a) of this title or con-

cluding an investigation under section 208(b) of this title,

the Commission shal] issue an order granting or denying

. aa

such petition. (2) Any order issued under paragraph (1)

shall be a final order and may be appealed under section

402(a) of this title.

Telecommunications Act of 1996, Sec. 601(c): ;

Federal, State, and Local Law. — (1) No implied ef-

fect. — This Act and the amendments made by this Act

shall not be construed to modify, impair, or supersede Fed-

eral, State, or local law unless expressly so provided in

such Act or amendments.

4S

App. C-]

APPENDIX C - Letters and Miscellaneous Documents

UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON D.C.

May 19, 1999

Office of

Air and Radiation

Arthur Firstenberg

President, Cellular Phone Taskforce

Post Office Box 100404

Vanderveer Station

Brooklyn, New York 11210 _

Dear Mr. Firstenberg,

] am writing in response to your letter of May 10,

1999, in which you asked whether the Environmental Pro-

tection Agency (EPA) has ever received a request from the

Federal Communications Commission (FCC) asking EPA

to evaluate, with regard to health implications of exposure

to radiofrequency radiation, the documents that exist in the

FCC’s Notice of Proposed Rulemaking of April 1993, or

after the final rule was issued in August 1996.

To my knowledge, the FCC has not asked EPA to

review and evaluate any of the materials in the FCC’s

docket ET-93-62, other than the April 1993 Notice of Pro-

posed Rulemaking (NPRM), Guidelines for Evaluating the

Environmental Effects of Radiofrequency 1993 letter from

Margo T. Oge, Director of Radiation and Indoor Air, to

446

Thomas P. Stanley, Chief Engineer, Office of Engineering

and Technology. EPA’s November 1993 comments are

appended.

] hope that this information has been responsive to

your letter.

Sincerely yours,

/s/ Norbert N. Hankin

Norbert N. Hanking

Environmental Scientist — Radiation

Office of Radiation and Indoor Air (66045)

A7

App. C-2

STATE OF WASHINGTON

SECRETARY OF STATE

I., Ralph Numro, Secretary of State of the State of Wash-

ington and custodian of its seal, hereby issue this

CERTIFICATE OF EXISTENCE/AUTHORIZATION

OF

AD-HOC ASSOCIATION OF PARTIES CONCERNED

ABOUT THE FEDERAL COMMUNICATIONS COM-

MISSION’S RADIO FREQUENCY RADIO FRE-

QUENCY HEALTH AND SAFETY RULES.

] FURTHER CERTIFY that the records on file in this of-

fice show that the above named nonprofit corporation was

formed under the laws of the State of Washington and was

issued a Certificate of Incorporation in Washington on

June 6, 1997.

] FURTHER CERTIFY that as of the date of this certifi-

cate, no Articles of Dissolution have been filed, and that

the corporation is duly authorized to conduct affairs in the

corporate form in the State of Washington. -

| SEAL of the | Date: September 12, 2000

AR

| State of Washington| Given under my hand and

| | the seal of the State of

Washington at Olympia, the

State Capitol

By /s/ Ralph Munro

Ralph Munro, Secretary of

State