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

) Supreme Court, BOB,

No. 00- 00-417 sep 1 son

— GFFICE UF (HE CLERK

Supreme Court of the United States

MICHAEL C. WORSHAM,

Petitioner,

v.

FEDERAL COMMUNICATIONS COMMISSION

and UNITED STATES OF AMERICA,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

MICHAEL C. WorsHAM, Esa.

Petitioner, Pro Se

1916 Cosner Road

Forest Hill, MD 21050-2210

(410) 692-2749

162175 @) Counsel Press LLC

(800) 274-3321 * (800) 359-6859

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QUESTION PRESENTED

In the Telecommunications Act of 1996, Section 704

preempted State and local control over wireless facilities such

as cellular phone towers on the basis of the “environmental

effects” of radio frequency emissions that comply with the

Federal Communications Commission regulations

concerning such emissions. Sections 601(c) expressly

prohibited implied preemption. Section 253(b) preserves

certain state regulation authority over public safety and

welfare even if such regulation may create barriers to entry

of telecommunications services.

1. Whether the Federal Communications Commission may

imply federal preemption of local control and regulation over

the “health effects” of radiation from wireless facilities, when

the Telecommunications Act of 1996 expressly prohibits

implied preemption, and only preempts local control over

the undefined term “environmental effects.”

ii

PARTIES TO THE PROCEEDING

Petitioner in this Court is Michael C. Worsham, an

attorney and resident of Maryland. Petitioner Worsham was

a Petitioner in the Court of Appeals for the Second Circuit.

He is a member of the Ad-Hoc Association of Parties

Concerned About the Federal Communications Commission

Radio Frequency Health and Safety Rules, an organization

which was a Petitioner in the Second Circuit and a party to

the FCC rulemaking. He has represented and is currently

representing persons at zoning hearings for the siting of

cellular towers. He has also represented himself at several

cellular tower zoning hearings, and is currently appealing

the approval of a cellular tower facility application in Harford

County, Maryland. During this hearing he was restricted from

discussing the health effects of the proposed cellular tower.

Other parties who participated in the proceeding in the

court whose judgment is sought to be reviewed include:

Cellular Phone Taskforce, Ad-Hoc Association of Parties

Concerned About the Federal Communications Commission

Radio Frequency Health and Safety Rules; David

Fichtenberg; Citizens for Appropriate Placement of

Telecommunications Facilities; John Bardis; Erica Zweig,

Christopher Beaver, of Noe Valley Families Against the

Antennas; Major Belkin; Donna Casey; Maggie Fox; Eileen

Lahey; Mark R. Shirely; M. Sue Storm; 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 Communications Planning; Jerry Davis;

Jean Foley, of Ulysses Citizens for Responsible Technology;

Holly A. Fournier, Selectboard member of Charlotte, VT and

Pal

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co-chair of Citizens 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 Responsible Tower Siting; Dale A. Newton;

Janet R. Newton; Bernard Greenberg; Laridna A. Knowiton;

Roger Knowlton, of Thistle Hill Neighborhood Alliance;

Cathy Bergman-Venezia; Frank Goodrich; Andrew J.

Hillman; Marija Huges; Mark Hutchins; Ralph E. Munston,

of EMR Alliance; Julie E. jordan, of Coalition of Concerned

Citizens For Responsible Technologies; Jeannine Karlsson,

Commissioner of Town of Bedford Conservation Board;

Patricia Kelley; S.G. Lawrence; Emery Lazar; Dawn Mason;

Dorothy Miller, Advisory Neighborhood Commissioner;

Edward Steinman; Peter De Pippo; The Communications

Workers of America, AFL-CIO; 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.

Respondents in this case are the Federal

Communications Commission and the United States of

America, both of which were Respondents in the Court of

Appeals for the Second Circuit.

Interveners in the Court of Appeals for the Second

Circuit include the Cellular Telecommunications Industry

Association, National Association of Broadcasters,

Association For Maximum Service Television, Inc.,

Electromagnetic Energy Association, and AT&T Wireless

Services, Inc.

iv

TABLE OF CONTENTS

Page

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Parties to the Proceeding .........scsesesceess il

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Table of Cited Authorities ........cccvessenses Vv

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Constitutional Provisions, Statutes and Regulations

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Reasons for Granting the Writ ................. 8

I. There Exists An Assumption Against

Preemption In Areas Of Health .......... 9

II. Contrasting Federal Court Decisions ...... 10

III. Congress Has Distinguished Health Effects

From Environmental Effects ............ 13

IV. Nondelegation Doctrine Saavapewseiwane 14

EE eT ee OOP Or ree e os 16

TABLE OF CITED AUTHORITIES

Page

Cases:

American Trucking Ass'n, Inc. v. EPA, 175 F.3d

1027 (D.C. Cir. 1999), cert. granted, U.S. _,

120 S. Ct. 3129, 147 L. Ed. 2d 231 (2000) ..... 16

AT&T Wireless PCS, Inc. v. City Council of Virginia

Beach, 155 F.3d 423 (4th Cir. 1998) .......... 8, 12

Cellular Phone Company v. Town of Oyster Bay, 166

Pee aE 6 k5sbs vaeewS uae eedaeaw 8

Cellular Phone Taskforce v. FCC, 205 F.3d 82

ge Fe Sn pr eerie ean nr eying te) Shy A 1

Freeman v. Burlington Broadcasters, Inc., 204 F.3d

BAe GT ee ES ok sa eee wees ad 10, 11

Hillsborough County, Florida v. Automated Med.

SA, Be., BIE UD, FUT CUSSED van oc vcccccen 9

Illinois RSA No. 3, Inc. v. County of Peoria, 963

Fs FOe Cares Uk. SOPEE oie koe en vaanecns 8

Iowa Wireless Services, L.P. v. City of Moline, II1.,

29 F. Supp. 2d 915 (C.D. Ill. 1998) ........... 5, %2

J.W. Hampton, Jr. & Co. v. United States, 276 U.S.

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Cited Authorities

Page

Mauer v. Hamilton, 309 U.S. 598 (1940) ........ 9

Mistretta v. United States, 488 U.S. 361 (1989) ... 15

Primeco Personal Communications v. Village of Fox

Lake, 35 F. Supp. 2d 643 (N.D. Ill. 1999) ..... 12

Statutes:

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Telecommunications Act of 1996, § 60l(c) ..... 3, 23

Telecommunications Act of 1996, § 704........ s, 45

United States Constitution:

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Cited Authorities

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Rule:

United States Supreme Court Rule 13 ........... 2

Other Authorities:

Report and Order, 11 F.C.C. Red. 15123 (1996) .. 1,6

Second Memorandum Opinion and Order and Notice

of Proposed Rulemaking, 12 F.C.C. Red. 13494

SEE es Pee er ae Pou taker caies 1, 6

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Petitioner respectfully petitions for a writ of certiorari

to review the decision of the United States Court of Appeals

for the Second Circuit in consolidated cases 97-4328(L),

98-4003(Con.), 98-4005(Con.), 98-4025(Con.), and

98-4122(Con.).

OPINIONS BELOW

A Petition is being filed in this case by several Petitioners

represented by the firm of Landy & Seymour. That Petition

contains what will be a joint Appendix in this case, which

will be referred to as “A-”. The voluminous FCC record in

this rulemaking will be lodged with the Clerk of this Court.

The FCC Orders will be referred to as FCC First Order at

page #, etc. The original opinion of the Second Circuit Court

of Appeals is reported as Cellular Phone Taskforce v. FCC,

205 F.3d 82 (2d Cir. 2000) and is reproduced at A-1. The

opinion of the United States Court of Appeals for the Second

Circuit denying the petition for rehearing by the Cellular

Phone Taskforce is reproduced at A-23. The opinion of the

Second Circuit denying the petition for rehearing by

Communications Workers of America is electronically

reported at 2000 WL 862305 and reproduced herein at

A-26. The Orders of the FCC are reported at 11 F.C.C. Red.

15123 (1996) and 12 F.C.C. Red. 13494 (1997), and also

will be lodged with this Court by the firm of Landy &

Seymour.

STATEMENT OF JURISDICTION

On February 18, 2000, the Court of Appeals affirmed

the Orders of the FCC, and upheld the constitutionality of

the 1996 Act and validity of the FCC’s regulations. On June

6, 2000, the Court of Appeals denied the petition for

2

rehearing filed by the Cellular Phone Taskforce. On June

15, 2000, the Court of Appeals denied the petition for

rehearing by the Communications Workers of America. The

instant Petition is filed with 90 days of that decision, pursuant

to Supreme Court Rule 13. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS, STATUTES

AND REGULATIONS INVOLVED

U.S. Constitution Article I, § 1:

All legislative Powers herein granted shall be

vested in a Congress of the United States, which

shall consist of a Senate and House of

Representatives.

15 U.S.C. § 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 on both,

including underlying data and epidemiological

studies, studies of occupational exposure to a

chemical substance or mixture, toxicological,

clinical, and ecological studies of a chemical

substance or mixture, and any test performed

pursuant to this chapter.

42 U.S.C. § 2021(h):

Consultative, advisory, and miscellaneous

functions of Administrator of Environmental

Protection Agency. The Administrator of the

3

Environmental Protection Agency shall consult

qualified scientists and experts in radiation

matters, including the President of the National

Academy of Sciences, the Chairman of the

National Committee 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 deliberations of, and to advise the

Administrator. The Administrator shall advise the

President with respect to radiation matters,

directly or indirectly affecting health, including

guidance for all Federal agencies in the

formulation of radiation standards and in the

establishment and execution of programs of

cooperation with States. The Administrator shall

also perform such other functions as the President

may assign to him by Executive order.

42 U.S.C. § 4332: See A-32.

42 U.S.C. § 7412(a)(7):

The term “adverse environmental effect” means

any significant and widespread adverse effect,

which may reasonably be anticipated, to wildlife,

aquatic life, or other natural resources, including

adverse impacts on populations of endangered or

threatened species or significant degradation of

environmental quality over broad areas.

42 U.S.C. § 7412(b)(2):

Revision of the list. The Administrator shall

periodically review the list established by this

subsection and publish 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 reasonably be anticipated to be, carcinogenic,

mutagenic, teratogenic, neurotoxic, which cause

reproductive dysfunction, or which are acutely or

chronically toxic) or adverse environmental

effects whether through ambient concentrations,

bioaccumulation, deposition, or otherwise, but not

including releases subject to regulation under

subsection (r) of this section as a result of

emissions to the air. No air pollutant which is

listed under section 7498(a) of this title may be

added to the list under this section, except that

the prohibition of this sentence shall not apply to

any pollutant which independently meets the

listing criteria of this paragraph and is a precursor

to a pollutant which is in a 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 section solely due to its adverse effects on

the environment.

47 U.S.C. § 253(b):

State regulatory authority

Nothing in this section shall affect the ability

of a State to impose, on a competitively neutral

basis and consistent with section 254 of this title,

requirements necessary to preserve and advance

universal service, protect the public safety and

welfare, ensure the continued quality of

telecommunications services, and safeguard the

rights of consumers.

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

1996, § 704):

No state or local government or instrumentality

thereof may regulate the placement, construction,

and modification of personal wireless service

facilities on the basis of the environmental effects

of radio frequency emissions to the extent that

such facilities comply with the Commission’s

regulations concerning such emissions.

Telecommunications Act of 1996, § 601(c):

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

effect. — This Act and the amendments made by

this Act shall not be construed to modify, impair,

or supersede Federal, State, or local law unless

expressly so provided in such Act or amendments.

Additional statutory authorities are reproduced in the

Appendix.

6

STATEMENT OF THE CASE

Petitioner, along with numerous other parties,

participated in the judicial challenges to the

Telecommunications Act of 1996 and the FCC regulations

concerning the environmental and health effects of radio

frequency emissions from cellular tower facilities. The

challengers appealed the Second and final Order of the FCC

to the Second Circuit Court of Appeals.

On August 1, 1996 the FCC released its Report and Order

in ET Docket 93-62 (“First Order’), which set standards for

human exposure to radio frequency radiation emitted from

transmitters and facilities regulated by the FCC, including

“personal wireless service facilities,” commonly known as

cellular towers. See Guidelines for Evaluating the

Environmental Effects of Radiofrequency Radiation,

11 F.C.C. Red. 15123 (1996). The FCC rules precluded state

or local governments from regulating the siting of wireless

service facilities on the basis of environmental effects,

including health effects, provided the facilities comply with

the FCC’s radiation emissions standards. First Order at

paragraphs 164-168.

The Second Order, a final appealable Order, amended

the FCC’s rules and refined and clarified its decision in the

First Order. Second Memorandum Opinion and Order,

12 F.C.C. Red. 13494 (1997) (“Second Order”). Petitioners

challenged these substantive guidelines on a number of

grounds. Petitioner’s contentions included an assertion that

this regulatory prohibition, as well as the statutory provision

on which it is based (47 U.S.C. § 332(c)(7)(B)(iv)), is

unconstitutional.

7

The Second Circuit rejected all of the petitioner’s

arguments and upheld the FCC’s Second Order. Regarding

the Act’s preemption of “environmental effects,” the Circuit

panel simply assumed in the Background section of its

opinion that “the Act preempted state and local governments

from regulating the placement, construction or modification

of personal wireless service facilities on the basis of health

effects of RF radiation.” A-5. In stating so, the Court

effectively substituted the words “health effects” for the

words “environmental effects,” the words actually appearing

in the Act. The Court of Appeals did include a discussion of

whether the federal preemption extended to ‘operation’ of

wireless facilities.

In two decisions dated June 6, 2000 and June 15, 2000,

respectively, the Second Circuit denied rehearing of its

decision. A-23 and A-26.

INTRODUCTION

Congress passed the Telecommunications Act of 1996

to encourage and expand new communications technologies,

such as cellular telephones. In the Act Congress enacted a

vague preemptive clause regarding “environmental effects,”

creating national confusion over an issue of paramount

importance to local governments and communities:

protecting the health of its citizens. The FCC subsequently

exceeded its authority by interpreting this statute to preempt

local consideration of the health effects of wireless facilities.

Since every area of the United States is rapidly becoming

blanketed by microwave radiation from wireless facilities,

this case presents an important public health issue and a

question of law that requires resolution by the Court.

8

This Petition challenges the reach of the FCC in

interpreting and enforcing a preemption provision in the 1996

Act. Petitioner seeks review of the Second Circuit decision

which upheld the Act and the FCC’s regulations in all

respects. Petitioner specifically challenges the decision’s

endorsement of the FCC’s determination that the Act

preempts local regulation of the adverse human health effects

caused by microwave radiation emitted from wireless

facilities. This Petition also seeks review of the conflicting

opinions on preemption within the Second Circuit’s own

decisions, and among other Circuit and District Courts.

REASONS FOR GRANTING THE WRIT

Americans have expressed their great concern over the

health effects from wireless radiation at numerous zoning

appeals. AT&T Wireless PCS, Inc. v. City Council of Virginia

Beach, 155 F.3d 423, 431 at n.6 (4th Cir. 1998) (“A few

citizens did mention health concerns from radio emissions

...); Illinois RSA No. 3, Inc. v. County of Peoria, 963

F. Supp. 732, 744-5 (C.D. Ill. 1997) (“Numerous objectors

raised concerns about possible health effects of the proposed

tower.”); Cellular Phone Company v. Town of Oyster Bay,

166 F.3d 490 (1999) (“Of the comments, the vast majority

were addressed to the perceived health threat that the sites

might pose. Specifically, the residents of Oyster Bay

expressed concern that the RF emitted by the cell sites might

cause cancer. At the Glen Head hearing a petition was

introduced into evidence bearing 640 signatures, all from

residents opposed to the cell sites because of concern over

potential health risks.”).

9

This concern is understandable, since local authorities

are the primary avenue through which citizens and

communities address health issues. Unfortunately, the FCC’s

rule has effectively prohibited consideration of health effects

during wireless facility siting. This has tied the hands of local

decision makers, and left citizens frustrated. The FCC stated

that it “has hesitated to intrude on the ability of states and

localities to make regulations affecting health and safety.”

First Order at paragraph 166. However, the FCC clearly

assumes it has the authority to preempt state and local

regulation if it chose to, and clearly equates human health

effects with the environmental effects preempted under the

Act. /d. at paragraphs 164-168.

I. There Exists An Assumption Against Preemption In

Areas Of Health

This Court has established the doctrine that federal

preemption is not presumed, especially in matters of health

and safety: “As a matter of statutory construction

congressional intention to displace local laws in the exercise

of the commerce power is not, in general, to be inferred unless

clearly indicated by those considerations which are

persuasive of statutory purpose. This is especially the case

when public safety and health are concerned.” Mauer v.

Hamilton, 309 U.S. 598, 614 (1940). Relevant here is that

the “regulation of health and safety matters is primarily and

historically a matter of local concern.” Hillsborough County,

-Florida v. Automated Med. Lab., Inc., 471 U.S. 707, 719

(1985). When the “. . . the field that Congress is said to have

pre-empted has been traditionally occupied by the States ‘we

start with the assumption that the historic police powers of

the States were not to be superseded by the Federal Act unless

that was the clear and manifest purpose of Congress.’ ”

Hillsborough, 471 U.S. at 716.

10

The Court of Appeals agreed with the FCC that local

regulation of health effects was preempted by the Act. A-5.

However, in addressing whether the “operation” of wireless

facilities was preempted, the Court of Appeals reversed the

burden of proof for preemption from the party seeking

preemption to the party arguing against preemption. Instead

of considering whether Congress had clearly preempted the

traditional locai control and police power over health and

safety issues, as it should have, the Court considered whether

the Act amounted “to clear congressional intent to permit

state and local governments to regulate the operation of such

facilities,” A-21 (emphasis added). The Court of Appeals

turned preemption analysis on its head, and improperly put

the burden on the state or local entity to establish

Congressional permission, rather than on the agency seeking

preemption to establish clear Congressional preemption.

II. Contrasting Federal Court Decisions

The Court of Appeals’ interpretation of 47 U.S.C.

§ 332(c)(7)(B)(iv) is arguably inconsistent with its own

decision in Freeman v. Burlington Broadcasters, Inc., 204

F.3d 311 (2™* Cir. 2000). There the Court of Appeals

discussed the term “health and safety” and recognized that

the term “environmental effects” is not defined:

This term is used in conjunction with the term

“environmental effects,” which is not defined in

the statute but most likely refers to the already-

existing requirement that the FCC prepare an

Environmental Assessment in connection with the

grant of a license. See 47 C.F.R. § 1.1307 (1998).

The environmental effects specified by the

regulations do not include RF interference, but

rather focus on degradation of the natural

11

environment, effects on historical landmarks, and

the biological effects of RF radiation.

Id. at 325. This discussion leads to an important aspect of

this issue: Did Congressional preemption of the

“environmental effects” required for agency consideration

in an Environmental Impact Statement (EIS) or

Environmental Assessment (EA) extend to everything

considered in that EIS or EA?

Section 704(b) of the 1996 Act directed the FCC

to complete its Docket 93-62 action and prescribe “effective

rules regarding the environmental effects of radio frequency

emissions.” The Court of Appeals held that the completed

rulemaking action was the functional equivalent of an

EIS. A-17. The net effect of this decision is to grant deference

to a non-expert agency to preempt potentially any aspect of

an EIS or EA, despite in the instant case, an express statutory

prohibition on implied preemption. Section 601(c) of the

1996 Act.

At least one federal court has distinguished health effects

from environmental effects. In Jowa Wireless Services, L.P.

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

the court stated that:

While it is clear from the record that the City of

Moline considered potential health effects of the

tower, it is less clear that they considered

environmental effects. In any event, Moline’s

position, which this Court finds correct, is that

this statute prevents the denial of a permit on the

sole basis that the facility would cause negative

environmental effects. Here, even if it were to be

concluded that the expressed “health concerns”

12

fell within the meaning of “environmental

effects,” the decision which denied IW’s

application articulated other reasons besides that

of environmental concerns.

Id. at 924 (emphasis in original).

Two federal courts have essentially agreed with the Court

of Appeals in the instant case. The Fourth Circuit did not

address the issue of preemption, but in a footnote simply

assumed that environmental preemption extended to

encompass health effects. Virginia Beach, 155 F.3d 423,

431 atn.6. A few citizens did mention health concerns from

radio emissions, a concern the Act precludes. Similarly, in

Primeco Personal Communications v. Village of Fox Lake,

the court equated health and environmental effects without

any discussion. 35 F. Supp. 2d 643 at 645 (N.D. Ill. 1999).

(“. .. local authorities may not deny cellular tower permits

on the basis of perceived health risks”).

This Court should resolve the confusion that has arisen

in the federal courts, including that within the Second Circuit

itself, over just what Congress preempted in the Act when it

preempted local regulation of “environmental effects” of

RF radiation, and whether such preemption was lawful.

13

III. Congress Has Distinguished Health Effects From >

Environmental Effects

Congress has previously distinguished adverse

environmental effects from adverse human health effects

disjunctively in at least two environmental statutes. The

Toxic Substances Control Act defines the term “health and

safety study” to mean

any study of any effect of a chemical substance

Or mixture on health or the environment

or on both, including underlying data and

epidemiological studies, studies of occupational

exposure to a chemical substance or mixture,

toxicological, clinical, and ecological studies of

a chemical substance or mixture, and any test

performed pursuant to this chapter.

15 U.S.C. § 2602(6) (emphasis added).

The second and even clearer distinction is in the Clean

Air Act (CAA), which provides that:

The Administrator shall periodically review . ..

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 reasonably be anticipated to be, carcinogenic,

mutagenic, teratogenic, neurotoxic, which cause

reproductive dysfunction, or which are acutely or

chronically toxic) or adverse environmental

effects whether through ambient concentrations,

bioaccumulation, deposition, or otherwise .. .

a4

42 U.S.C. § 7412(b)(2) (emphasis added). The CAA also

defines the term “adverse environmental effect” to mean

“any significant and widespread adverse effect, which may

reasonably be anticipated, to wildlife, aquatic life, or other

natural resources, including adverse impacts on populations

of endangered or threatened species or significant

degradation of environmental quality over broad areas.”

42 U.S.C. § 7412(a)(7). This definition is the closest one

available to the undefined term in the 1996 Act. This

definition clearly does not include terms denoting human

health effects. In light of these Congressional definitions

there is simply no basis for the FCC to extend the 1996 Act’s

preemption of environmental effects to also encompass

human health effects. The Court of Appeals deference to the

FCC’s interpretation was clearly wrong, even without the

added force of the Act’s prohibition against implied

preemption.

IV. Nondelegation Doctrine

The Court of Appeals’ decision violates the

constitutionally based nondelegation doctrine, by granting

the FCC excessive legislative discretion in the area of health

and the environment.

In its Second Memorandum Opinion and Order,

paragraph 111, the FCC admits that “The Commission does

not have the expertise to make independent judgements on

such alleged health effects as ‘electrosensitivity’ or other

reported effects on human health. This is the responsibility

of the federal health and safety agencies and other qualified

public health organizations.” A-51. The FCC recognizes that

Congress gave the Environmental Protection Agency (EPA)

the authority to provide guidance to all Federal agencies in

forming radiation standards. 42 U.S.C. § 2021(h).

15

Regarding delegation, this Court has recognized that —

“If such a power is to be exercised at all, it can only be

satisfactorily done by a board or commission, constantly in

session, whose time is exclusively given to the subject.”

J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394,

408 (1928) (citation omitted). Since the FCC is not such a

board or commission, and the EPA is the authorized agency

for developing radiation standards, we must presume

Congress did not intend to give unconstitutional preemption

authority to the FCC. We must conclude that local health

regulation over RF emissions may not be preempted by the

FCC under the jurisdiction of the challenged statute.

The Court of Appeals’ decision allows the interpretation

of federal statutes and promulgation of regulations by a

federal agency that admits it has no expertise in the area it is

interpreting. It also allows the FCC to determine the extent

of federal preemption in the very area it has no expertise in.

A-20, 21. The Court simply deferred to the FCC’s “broad

preemption authority under the Telecommunications Act,”

and did not address the expertise required of an agency for it

to preempt local health regulations. A-20. This approach

wrongly turns the federal preemption analysis into an

automatic reliance on, and ratification of, an agency’s

predictable, if not mandatory, adoption of federal laws

through standard agency rulemaking procedures.

Secondly, the FCC rulemaking violates the

non-delegation doctrine because Congress did not provide

an “intelligible principle” for the FCC to follow. Mistretta

v. United States, 488 U.S. 361, 371-372 (1989) (citation

omitted). Congress’s delegation consisted of simply a

reminder for the FCC to complete action in Docket 93-62.

A-31. To rule that this pre-existing requirement to do an EIS

16

is proper delegation of an “intelligible principle” would allow

Congress to delegate legislative power simply by reminding

an agency to perform an EIS. Such a vague Congressional

directive would not be permissible delegation even

for an agency which has expertise in the delegated area.

American Trucking Ass'n, Inc. v EPA, 175 F.3d 1027, 1033

(D.C. Cir. 1999), cert. granted, U.S.__,1208S. Ct. 3129,

147 L. Ed. 2d 231 (2000) (ruling that the construction of the

CAA by the EPA — an expert agency in air pollution —

effect an “unconstitutional delegation of legislative power’).

CONCLUSION

For the reasons stated above, the Petition for a Writ of

Certiorari should be granted.

Respectfully submitted,

MICHAEL C. WorsHAM, Esq.

Petitioner, Pro Se

1916 Cosner Road

Forest Hill, MD 21050-2210

(410) 692-2749