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

Supreme Court of the United States

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CELLULAR PHONE TASKFORCE,

Petitioner,

V.

FEDERAL COMMUNICATIONS COMMISSION and

THE UNITED STATES OF AMERICA,

Respondents.

Sd

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

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BRIEF OF AMICI CURIAE

Disability Council Of The White Mountains, Oregon

State Rehabilitation Council, Unitarian

Universalist Association, The Jeremiah Project,

National Center For Environmental Health Strategies,

National Coalition For The Chemically Injured,

Chemical Injury Information Network, Inc.,

Environmental Health Network Of California,

Environmental Health Association Of California,

Ecology House, Inc., Health And Habitat, Inc., Citizens’

Task Force On Radiation Exposure, Joy Rothenberg,

Linda J. Allen, Scott Hamilton Dykes, Richard

Kimball, Marta Sonnenblick, Richard Uhtenwaldt,

Sylvia Williamson, and Louise Yost in support of

Petition for a Writ of Certiorari

+

Of Counsel: Grecory F. JitKa

STEVEN B. FEREN Counsel of Record

1886 North University 7770 Healdsburg Avenue

Drive Sebastopol, California

Plantation, Florida 33322 95472

(954) 236-2977 (707) 823-7361

CONS Le ee ae

OR CALL COLLECT (402) 342-283

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QUESTION PRESENTED

Whether federal agency rulemaking, which sets stan-

dards for a pervasive industry, and which preempts local

government zoning decisions regarding that industry,

constitutes a “program or activity” under section 504 of

the Rehabilitation Act, requiring adherence to its provi-

sions.

ii

TABLE OF CONTENTS

Page

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INTERESTS OF AMICI CURIA, ...0ccccccnvisesnes 1

IDENTIFICATION OF AMICI CURIAE ............. 3

SUMMARY OF ARGUMBNE «6. 0cccc0scccedacsccsses 5

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I. THE SECOND CIRCUIT’S LIMITATION OF

THE SCOPE OF THE REHABILITATION ACT

ABROGATES THE RIGHTS OF DISABLED

PERSONS AND CONFLICTS WITH DECI-

SIONS OF THIS AND OTHER COURTS..... 7

A. The FCC Must Comply With the Reha-

bilitation Act When Issuing Safety Stan-

Gaede for LIMOUEE, o o< conics cciscien ne 10

B. Federal Agencies Must Comply With the

Rehabilitation Act When Regulating State

and Local Governments. ................ 11

Il. THE SECOND CIRCUIT’S LIMITATION OF

THE SCOPE OF BOTH THE REHABILITA-

TION ACT AND THE AMERICANS WITH

DISABILITIES ACT CONFLICTS WITH THE

CLEAR INTENT OF CONGRESS TO PRO-

TECT DISABLED PERSONS. .....2..e0<s000. 12

III. EFFECTS OF THIS CASE ON OTHER DIS-

ky | Pee EPeeR etre rer re ee errr. 14

A. Hearing Aids, Wheelchairs, and Medical

CVE no inci ce tncnsessbead euaveneounes 14

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TABLE OF CONTENTS - Continued

Page

IV. THE QUESTION IS IMPORTANT AND

SUG a dena eh Wa cue tens Canwng os ¥iR ss 17

EE Ce eA Ne We bee we Tens Veneeuneecéeee das 18

iv

TABLE OF AUTHORITIES

Page

Cases

Bay Area Addiction Research v. City of Antioch,

i ee we Ee | Mere Terre r iy 12

Cellular Phone Taskforce v. FCC, 217 F.3d 72 (2d

ee eRe CTC eT Te Pee TT rere Teeter Pees 1

Chevron U.S.A., Inc. v. National Resources

Defense Council, Inc., 467 U.S. 837 (1984).......... 8

Clark v. Skinner, 937 F.2d 123 (4th Cir. 1991)......... 9

Cousins v. Secretary of the U.S. Department of

Transportation, 880 F.2d 603 (1st Cir. 1989)......... 9

Davis v. Monroe County Board of Education, 526

hs eet. Ue, Serene y ey fe? ree ee 11

Freeman v. Burlington Broadcasters, 204 F.3d 311

(2d Cir. 2000), cert. denied, 148 L.Ed.2d 201

GRU 6 ccd gk hiceds on ase cade ea page ne pin ainsk ee 14

Gebser v. Lago Vista Independent School District,

Gee SAG Ore CE ep eek hnnkdcwed diseeweencainee 11

Grove City College v. Bell, 465 U.S. 555 (1984)....... 8

Innovative Health Systems v. City of White Plains,

SEF Syee ae ee i sh Sawer ca eee iesaada eis 12

National Collegiate Athletic Association v. Smith,

ee a I RE i ea AG aaes aK ee eR ee henkas 7

Cmnptead v. G4, Sar UB. SRE CRG e) a ccc sce vaca vies 13

Simms v. NHTSA, 45 F.3d 999 (6th Cir. 1995) ........ 9

Southwestern Bell v. Johnson County Board, 199

F.3d 1185 (10th Cir. 1999), cert. denied, 147

a, er eres FET rrr 14

Traynor v. Turnage, 485 U.S. 535 (1988) ............. 10

w

TABLE OF AUTHORITIES - Continued

Page

STATUTES

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eS ol Sr rere re Terre re oey oe rare: 2,

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ee Sacer RIE ED) ss, CH kkk Ghee keRMmaeees 13

| ee ree ey ere pere 14

CS Wits © Been OF WR a Eee tae 2

Age Discrimination Act of 1975..............ccceeees 7

Americans with Disabilities Act, Pub.L.No.

PG Ae hia aKa ee eae eevee ea tas passim

Civil Ragen Act OF 2906. Tite VE io. sek ciicvsscadenns 8

Civil Rights Restoration Act, Pub.L.No. 100-259 ...... 7

Education Amendments of 1972, Title IX............. 7

Pen GE, BB oink ks kok chcvndenners passim

Rehabilitation Act of 1973, Pub.L.No. 93-112 ........ 12

Rehabilitation Act Amendments of 1974,

Fe Ee Wiss MGR ee buns Sun uew cde tweee 13

Rehabilitation, Comprehensive Services and

Developmental Disabilities Amendments of

SOG ds TRUM Sodus is on eueiedvaver\aewa se 13

REGULATIONS

ne eee ee ree reer er re 10

ee A ng seen, 10

vi

TABLE OF AUTHORITIES - Continued

Page

RULE

Supreme Court Rale 37.2 .......ccccccvsssacecceseves 1

OTHER AUTHORITIES

A, BOs Dek (AOU seca sc ekes ses diees tennis 9

Executive Osder 12250, § 8-Z01(C) .... 22s ccccwcccnses 8

Final Rule, 49 Fed. Reg. 35724 (1984) ................ 8

Levallois, P., et al., “Prevalence of Self Reported

Electrical Hypersensitivity and Associated Fac-

tors in California.” Proceedings of the Twenty-

Second Annual Meeting of the Bioelectromagnetics

Society, Munich, Germany, June 11-16, 2000, p.

EE ok do BE Cg KARE RED ARE ROR REELS ick 17

Report and Order, 2 FCC Red Vol. 8 2199 (1987) .... 10

Report and Order, 11 FCC Red 15123 (1966)......... 15

———xxue

BRIEF OF AMICI CURIAE

IN SUPPORT OF THE PETITION

Pursuant to Rule 37.2 of the Rules of this Court, amici

curiae submit this brief in support of the petition of the

Cellular Phone Taskforce on the Rehabilitation Act issue.!

¢

OPINION BELOW

The opinion of the Court of Appeals on the Reha-

bilitation Act issue is reported at 217 F.3d 72 (2d Cir.

2000) and appears in the appendix of petitioners, Citizens

for the Appropriate Placement of Telecommunications

Facilities, et al., hereafter cited as “App.,” at A-23-25.

¢

INTERESTS OF AMICI CURIAE

This amici curiae brief is filed on behalf of the follow-

ing disability organizations and individuals with disabil-

ities. The concern of amici is that the exemption of federal

agency rulemaking from the Rehabilitation Act has cre-

ated a loophole which eliminates protections previously

accorded persons with disabilities at local, state, and

federal levels.

1 No counsel for any party authored this brief, either in

whole or in part. Furthermore, no persons other than amici

curiae, their members or their counsel contributed financially to

the preparation of this brief. The parties have consented to the

filing of this brief and their letters of consent have been lodged

with the Clerk of the Court.

People with disabilities are protected against dis-

crimination by federal agencies (§ 504 of the Rehabilita-

tion Act (“RA”))2, and by states and public entities (Title

II of the Americans with Disabilities Act (“ADA”))>. But,

bizarrely, under this court of appeals decision, disabled

persons lose their protections against discrimination by

both states and public entities if a federal agency so

orders. Neither the ADA nor the RA applies, said the

court of appeals. The implications for the nation’s 54

million* people with disabilities are serious and urgent.

Some of the amici curiae are individuals or organiza-

tions of individuals with chemical aad electrical sensi-

tivities. The United States Architectural and Trans-

portation Barriers Compliance Board (“The Access

Board”) has written,

Over the years, the Access Board has learned

about the very important needs of people with

multiple chemical sensitivities and electrical

sensitivities. We have heard from thousand[s] of

people across the country who are sensitized to

chemicals and electromagnetic, radio, and cell

phone emissions. . . >

+

2 29 U'S.C. § 794.

3 42 U.S.C. § 12131 et seq.

4 This is the current estimate of the National Council on

Disabilities.

5 Letter of October 26, 2000 from James Raggio, General

Counsel of the Access Board. The letter is reproduced in the

appendix to this brief. The Access Board is a federal agency

which develops and enforces accessibility guidelines under the

ADA, the Architectural Barriers Act, and the Tele-

communications Act.

IDENTIFICATION OF AMICI CURIAE

The following organizations, individuals, and gov-

ernment agency have authorized the preparation and fil-

ing of this brief as friends of the Court on their behalf.

DISABILITY COUNCIL OF THE WHITE MOUN-

TAINS, a non-profit organization founded in 1994 focus-

ing on issues of disability in Navajo and Apache

Counties, Arizona.

OREGON STATE REHABILITATION COUNCIL

(“SRC”), an advisory board appointed by the Governor,

pursuant to the Rehabilitation Act, 29 U.S.C. § 725. SRCs

work in partnership with State Vocational Rehabilitation

agencies in carrying out State responsibilities under Title

I of the RA.

UNITARIAN UNIVERSALIST ASSOCIATION, a reli-

gious organization of 1,051 congregations that recognizes

accessibility as an issue of social justice.

THE JEREMIAH PROJECT, an outreach ministry of

the Presbyterian Church (USA) for people disabled by

chemical injury.

NATIONAL CENTER FOR ENVIRONMENTAL

HEALTH STRATEGIES (“NCEHS”), a 5,000 member non-

profit education and advocacy organization founded in

1986 and focused on indoor air quality, chemical sensi-

tivities, and environmental disabilities. NCEHS was

involved in the creation and passage of the Americans

with Disabilities Act and was invited to the signing of the

Act.

NATIONAL COALITION FOR THE CHEMICALLY

INJURED (“NCCI”), a national non-profit education and

advocacy organization founded in 1996 with twelve affili-

ated support groups for people with chemical injury and

related disabilities. NCCI has presented briefings invited

by the Access Board.

CHEMICAL INJURY INFORMATION NETWORK,

INC. (“CIIN”), a national non-profit educational and sup-

port network for people with chemical injury, founded in

1990. CIIN has given testimony before Congress, and has

prepared invited reports on chemical injury for the

Department of Health and Human Services, the Centers

for Disease Control, and the U.S. Interagency Taskforce

on Multiple Chemical Sensitivity.

ENVIRONMENTAL HEALTH NETWORK OF CALI-

FORNIA (“EHN”), a non-profit organization founded in

1987 promoting public awareness of environmental sensi-

tivities and their causative factors and advocating on

resulting issues of access. EHN has been active since

before the passage of the ADA in advocating in California

and nationally for accessibility for people with environ-

mental disabilities.

ENVIRONMENTAL HEALTH ASSOCIATION OF

CALIFORNIA, a non-profit organization founded in 1980

and based in the Los Angeles area, providing support,

information, and advocacy for people with multiple

chemical sensitivities and related disabilities, such as

electrical sensitivity.

ECOLOGY HOUSE, INC., a federally funded non-

profit housing project in San Rafael, California designed

and built for people disabled by multiple chemical sensi-

tivities.

HEALTH AND HABITAT, INC., a non-profit organi-

zation based in Mill Valley, California, providing educa-

tion and research on the connection between the

environment and health, working to preserve natural

habitats, and promoting healthy housing.

THE CITIZENS’ TASKFORCE ON RADIATION

EXPOSURE, a citizens’ group in Santa Fe, New Mexico

representing 1,000 people who have signed a petition

opposing cellular communication towers in residential

areas.

Joy Rothenberg, Corresponding Secretary of the New

York City chapter of the Human Ecology Action League

(“HEAL”) (participating as an individual). HEAL is a

national support organization for people with environ-

mental disabilities.

Linda J. Allen, Scott Hamilton Dykes, Richard Kim-

ball, Marta Sonnenblick, Richard Uhtenwaldt, Sylvia Wil-

liamson, and Louise Yost, individuals disabled by

electrical and/or chemical sensitivities.

.

SUMMARY OF ARGUMENT

The Federal Communications Commission (“FCC”)

rules at issue regulating radiofrequency (“RF”) exposure

from the telecommunications industry became effective

in August 1996. Since that time the buildout of wireless

communication facilities has been so rapid that there is

hardly any corner of the country left which is not subject

to their effects. RF radiation has known effects on biolog-

ical systems, and on electronic equipment, including

medical and adaptive equipment required by many indi-

viduals with disabilities.

Amici respectfully urge that the court of appeals’

decision, exempting this FCC rulemaking from the provi-

sions of both the ADA and the RA, is not consistent with

the intent or the substance of either, or with the imple-

menting regulations of the FCC itself, and is in conflict

with previous decisions of several circuit courts and this

Court. Amici further urge that the exception to the non-

discrimination laws embodied in this decision would

have broad effects far beyond the electrically sensitive,

encompassing every type of disability and every type of

architectural or other barrier. If agency rulemaking is not

a “program or activity” of the agency requiring compli-

ance with the RA (App. A-25), then any federal agency

may regulate any industry without regard to the effects of

the regulations on persons with disabilities.

The rules in question here not only regulate a perva-

sive and rapidly growing industry, but preempt state and

local government zoning decisions regarding the health

effects of that industry. This is precisely the type of

situation in which government should be most vigilant to

safeguard the rights of those likely to be most affected by

this industry, instead of creating new and broad excep-

tions which abrogate their rights.

6

ARGUMENT

I. THE SECOND CIRCUIT’S LIMITATION OF THE

SCOPE OF THE REHABILITATION ACT ABRO-

GATES THE RIGHTS OF DISABLED PERSONS

AND CONFLICTS WITH DECISIONS OF THIS

AND OTHER COURTS.

Petitioner’s RA complaint states that:

On August 6, 1996 the Federal Communications

Commission (FCC) adopted into effect its

Report and Order in the Matter of Guidelines

for Evaluating the Environmental Effects of

Radiofrequency Radiation, ET Docket No. 93-62.

This action by the FCC discriminates against

electrosensitive individuals, numbering at least

2% of the population of the United States.

(App. A-40). The court of appeals refused to rule on the

merits of this claim, stating instead that this rulemaking

does not fall within “the scope of the Rehabilitation Act’s

protections” because it is not a “ ‘program or activity

within the meaning of the Act (App. A-25).

so”

But the courts, and the federal agencies themselves,

including the FCC, have interpreted the language of the

RA more broadly. In the case of federal aid recipients,

Congress clarified in 1988 that “program or activity”

means “all of the operations” of the recipient, 29 U.S.C.

§ 794(b). See National Collegiate Athletic Association v.

Smith, 525 U.S. 459, 466 and n.3 (1999).¢

6 The Civil Rights Restoration Act, Pub.L.No. 100-259,

amended Title IX of the Education Amendments of 1972, § 504

of the Rehabilitation Act of 1973, the Age Discrimination Act of

In the case of the federal agencies themselves, the

Department of Justice, which was responsible for coor-

dinating the implementation of § 504 of the RA,’ has

provided a similar definition: “Under this section, a fed-

erally conducted program or activity is, in simple terms,

anything a Federal agency does.” 49 Fed. Reg. 35724,

35725 (1984), Final Rule, Enforcement of Nondiscrimina-

tion on the Basis of Handicap in Federally Conducted

Programs. The opinion of the Department of Justice, as

the responsible agency, is entitled to controlling weight.

Chevron U.S.A., Inc. v. National Resources Defense Council,

Inc., 467 U.S. 837, 844 (1984).

The legislative history of § 504 supports this inter-

pretation. When it was amended in 1978 to apply to

Executive agencies, Representative James Jeffords, an

author of the bill, stated during the debates on the confer-

ence report:

Somehow it did not seem right to me that the

Federal Government should require States and

localities to eliminate discrimination against the

handicapped wherever it exists and remain

exempt themselves. So I developed a-provision

which is in this conference report that extends

coverage of section 504 to include any function

1975, and Title VI of the Civil Rights Act of 1964, all with nearly

identical language, to broaden the definition of “program or

activity” to include “all of the operations” of a recipient of

federal funds. This overturned the Supreme Court’s earlier

decision in Grove City College v. Bell, 465 U.S. 555 (1984), which

had given the phrase “program or activity” a narrower

meaning.

7 See Executive Order 12250, § 1-201(c).

or activity in every department or agency of the

Federal Government.

124 Cong. Rec. 38,551 (1978).

In agreement with these broad definitions, and in

conflict with the Second Circuit’s decision, ample case

law has recognized that agency rulemaking is subject to

the RA. See Cousins v. Secretary of the U.S. Department of

Transportation, 880 F.2d 603 (1st Cir. 1989) (en banc); Clark

v. Skinner, 937 F.2d 123 (4th Cir. 1991); Simms v. NHTSA,

45 F.3d 999 (6th Cir. 1995). Until now, it appears that no

circuit court has questioned the applicability of § 504 to

agency rulemaking activity.

The Simms case bears striking parallels to the instant

case. Petitioners were challenging the validity of National

Highway Traffic Safety Administration safety standards

for the safe transportation on school buses of students in

wheelchairs. They alleged that the standards were not

stringent enough. The court noted:

[T]he petitioners, seeking a change in an Execu-

tive agency regulation, presented a claim under

the Rehabilitation Act to the agency at the initia-

tion of the rulemaking process and participated

in this process every step of the way until a final

rule issued. They then followed the prescribed

procedure by seeking review in the court of

appeals, rather than mounting a collateral attack

on the regulations in district court. Under these

circumstances, we agree with the courts which

have held that the Rehabilitation Act claim is

properly before the court of appeals pursuant to

a petition for review.

Id. at 1010.

10

The Supreme Court also considered a § 504 challenge

to agency rules in Traynor v. Turnage, 485 U.S. 535 (1988).

Petitioners had challenged a Veterans Administration

regulation defining primary alcoholism as “willful mis-

conduct” (thereby disqualifying alcoholics from receiving

certain benefits). This Court assumed, without comment,

that the RA applied, and specifically decided that peti-

tioners’ § 504 claim was entitled to judicial review. 485

U.S. at 545.

The Second Circuit's decision in the instant case con-

flicts not only with the cases cited above, but with the

FCC’s own regulations implementing the RA.

A. The FCC Must Comply With the Rehabilitation

Act When Issuing Safety Standards For

Licensees.

The FCC’s own rules implementing the RA are

sweeping. Although the FCC’s licensees are not them-

selves covered by the RA, all of the FCC’s own activities

related to its licensees, including rulemaking, are so cov-

ered. 47 C.F.R. §§ 1.1830(b)(3) and (6), App. A-35-36. And,

in its analysis of these provisions, the FCC specifically

said that “the Commission must comply with these non-

discrimination requirements when establishing safety

standards for the operations of licensees.” Report and

Order, 2 FCC Red Vol. 8 2199, 2203 (1987), App. A-38.

The FCC further elaborated that although its

licensees are not covered by the RA, § 504 may indirectly

affect aspects of their operations because it covers “the

content of the rules established by the agency for the

11

operation of the program or activity of the licensee.” Id.

at 2204, App. A-38.

Furthermore, the Second Circuit’s decision conflicts

with Davis v. Monroe County Beard of Education, 526 U.S.

629 (1999). In Davis, this Court held that a school board is

liable for sex discrimination by third parties over whom it

exercises authority, when its “own deliberate indifference

effectively ‘cause[d]’ the discrimination,” 526 U.S. at

642-3, citing Gebser v. Lago Vista Independent School Dis-

trict, 524 U.S. 274, 291 (1998).

The instant case goes beyond deliberate indifference.

The FCC deliberately set rules for its licensees in terms

that inescapably affect large numbers of persons with

disabilities. This is an action of the FCC which is subject to

§ 504 of the RA.

B. Federal Agencies Must Comply With the Reha-

bilitation Act When Regulating State and Local

Governments.

When a federal agency, as in this case, preempts one

or more functions of state and local government, people

with disabilities retain their protections under the non-

discrimination laws, absent clear Congressional intent to

abrogate them. It would be an absurd result if the mere

transfer of jurisdiction over the environmental effects of

RF radiation from one entity covered under a non-

discrimination law (the states) to another entity covered

under a nondiscrimination law (the FCC) extinguished

both laws. Yet in this case, the Second Circuit has ruled

that in such a situation neither the ADA nor the RA any

longer apply (App. A-25).

12

As the Cellular Phone Taskforce writes in its petition

for certiorari, both the Ninth and Second Circuits have

ruled that zoning is a normal function of government and

therefore is covered by the provisions of the RA and the

ADA. See Bay Area Addiction Research v. City of Antioch,

179 F.3d 725, 731 (9th Cir. 1999); Innovative Health Systems

v. City of White Plains, 117 F.3d 37, 44 (2nd Cir. 1997). In

discussing the phrases “program or activity” (RA) and

“service, program, or activity” (ADA), the Second Circuit,

in Innovative Health Systems, said, “it is a catch-all phrase

that prohibits all discrimination by a public entity regard-

less of context, and that should avoid the very type of

hair-splitting analysis the City attempts to make here.” Id.

at 45.

Yet this same type of hair-splitting analysis has been

used by the same court to abrogate the rights of persons

with disabilities in the instant case. Since the FCC’s rule

precludes zoning decisions on the very issues that affect

many disabled people, the rule itself constitutes a zoning

decision subject to nondiscrimination laws. The transfer

of jurisdiction over these decisions from the states to the

FCC cannot extinguish the protections granted by law to

persons with disabilities.

Il. THE SECOND CIRCUIT’S LIMITATION OF THE

SCOPE OF BOTH THE REHABILITATION ACT

AND THE AMERICANS WITH DISABILITIES

ACT CONFLICTS WITH THE CLEAR INTENT OF

CONGRESS TO PROTECT DISABLED PERSONS.

In the Rehabilitation Act of 1973, Pub.L.No. 93-112,

Congress noted that handicapped individuals have

13

historically been underserved. Congress proscribed dis-

crimination against an individual “by reason of her or his

handicap” under any program or activity receiving Fed-

eral financial assistance. 29 U.S.C. § 794(a).

In 1974, Congress clarified that the proscription

extended beyond employment to other types of discrimi-

nation (Rehabilitation Act Amendments of 1974,

Pub.L.No. 93-516).

In 1978, Congress again amended the Rehabilitation

Act to extend the proscription against discrimination to

all Executive agencies and the United States Postal Ser-

vice (amendment to 29 U.S.C. § 794, The Rehabilitation,

Comprehensive Services and Developmental Disabilities

Amendments of 1978, Pub.L.No. 95-602).

In 1990, in the Americans with Disabilities Act,

Pub.L.No. 101-336, “Congress explicitly identified

unjustified ‘segregation’ of persons with disabilities as a

‘for[m] of discrimination.’ See § 12101(a)(2).” Olmstead v.

L.C., 527 U.S. 581, 600 (1999). Title II of the ADA extended

the proscription on discrimination to states, local govern-

ments, and public entities. At that time the number of

Americans with disabilities was said to be “some

43,000,000.” 42 U.S.C. § 12101(a)(1).

It is clearly the intent of Congress that individuals

with disabilities be protected from discrimination by both

federal and state entities, and the instant case reveals a

situation in which federal preemption under the Com-

merce Clause implicates federal and state governments at

the same time. Petitioner Cellular Phone Taskforce

alleged that the FCC’s rules violate the RA, and that they

prohibit the states from enforcing the ADA, in violation

14

of that Act aiso. The court of appeals’ ruling that when

the FCC regulates states, both RA and ADA protections

vanish, is a result which removes the protections afforded

people with disabilities and in effect allows abrogation of

their rights by the Commerce Clause. This is directly

contrary to the stated intent of Congress, which is to

invoke the power “to regulate commerce” to enforce non-

discrimination, not to abrogate it. 42 U.S.C. § 12101(b)(4).

Ill. EFFECTS OF THIS CASE ON OTHER DISABIL-

ITIES

A. Hearing Aids, Wheelchairs, and Medical

Devices

This Court has recently denied certiorari in two cases

on the issue of radiofrequency interference. In Freeman v.

Burlington Broadcasters, 204 F.3d 311 (2d Cir. 2000), cert.

denied, 148 L.Ed.2d 201 (2000), and in Southwestern Bell v.

Johnson County Board, 199 F.3d 1185 (10th Cir. 1999), cert.

denied, 147 L.Ed.2d 234 (2000), the courts of appeals held

that the FCC has exclusive authority over interference

with electronic devices, and that states and local govern-

ments may not regulate in this area. Yet if the Second

Circuit’s decision in the instant case is allowed to stand,

the FCC will be allowed to regulate in this area without

complying with any nondiscrimination statute.

The plaintiffs in Burlington Broadcasters brought suit

because local broadcast facilities were causing wide-

spread interference with hearing aids, computers, televi-

sions, telephones, etc. This type of interference also

affects electric wheelchairs, pacemakers, and various

other medical devices. ,

15

The record of the instant case contains ample evi-

dence of the seriousness of these problems:

Testing by Jon Short at BT Laboratories in England in

1992 established that hearing aids are subject to annoying

interference from digital cellular apparatus. “The critical

field strength is around 4 V/m for perceptible, annoying

interference.” JA 973.8 This corresponds to a power den-

sity of 42 microwatts per square centimeter, which is

more than 100 times less power than the exposure

allowed by the FCC’s rules.?

On June 5, 1995, the Hear-It Now Coalition submitted

a petition for rule-making to the FCC asking it to man-

date that wireless technologies be made compatible with

hearing aids and medical devices. JA 971.

On February 28, 1996, San Diego Mayor Susan Gold-

ing wrote a letter to the FCC presenting evidence of

interference by wireless facilities with hearing aids, elec-

tric wheelchairs, pacemakers, and other devices. She

asked the FCC to what extent its regulations preempt the

City of San Diego from regulating to prevent such inter-

ference. Chairman Reed E. Hundt of the FCC responded

on March 15, 1996: “The Communications Act of 1934, as

8 “JA” refers to pages of the Joint Appendix submitted to

the court of appeals.

9 At 800 MHz and 1900 MHz, the two frequencies currently

used for cellular phones in the U.S., the FCC’s rules allow an

exposure to the general population of 533 microwatts per square

centimeter and 1000 microwatts per square centimeter,

respectively. See Table 1(B) of Report and Order, 11 FCC Rcd

15123 (1996), lodged with the Court, at p. 93.

oN heme ao teat

16

amended, provides the FCC exclusive jurisdiction over

radio frequency interference.” !°

On March 22,1996, Dr. Ken Joyner of Telstra (an

Australian telecommunications company) and Dr. John

Causebrook of Vodafone (a British telecommunications

company) wrote a letter to Microwave News stating,

We have conducted extensive testing of the

potential of cellular telephones to interfere with

the operation of medical electrical equipment

and consulted with manufacturers of that equip-

ment. Our conclusion is that medical electrical

equipment should not be exposed to levels

above 1 V/m from mobile radio installations.

JA 942. One voit per meter correSponds to 0.27 micro-

watts per square centimeter, which is more than 2000

times less power than the exposure levels allowed to the

general population by the FCC’s rules.

B. Other Disabilities

The Second Circuit’s decision sets a broad precedent.

If the setting of rules by federal agencies is not subject to

any nondiscrimination law, this affects every mental and

physical disability, and every type of architectural or

other barrier — not just electromagnetic barriers.

10 Letter from Reed Hundt to Susan Golding, p. 6,

attachment to comments submitted by Cellular

Telecommunications Industry Association, docket entry of June

24, 1996, JA 164.

————————

17

IV. THE QUESTION IS IMPORTANT AND URGENT.

The protections afforded 54 million Americans with

disabilities are at issue in this case. For some —- people

who use hearing aids, those who use electric wheelchairs,

those with pacemakers implanted, and others dependent

on electronic medical or adaptive devices — the particu-

lars of this case make the question of pressing impor-

tance.

For those directly medically vulnerable to RF radia-

tion (such as people with some forms of epilepsy, certain

heart conditions, and other electrically sensitive people),

the question cannot wait. Their numbers may exceed 8

million in the U.S., according to the results of the 1998

California Adult Tobacco Survey. The random survey of

2,072 adults, conducted by the California Department of

Health Services in Oakland, revealed that 3.3% reported

being electrically sensitive. The authors of this study

noted that this is a much higher prevalence than reported

in previous estimates.!!

1! P. Levallois, et al., “Prevalence of Self Reported Electrical

Hypersensitivity and Associated Factors in California.”

Proceedings of the Twenty-Second Annual Meeting of the

Bioelectromagnetics Society, Munich, Germany, June 11-16, 2000,

pp. 268-269. This study is part of the California EMF research

program, which is mandated by the Public Utilities Commission

and financed by California utilities.

18

CONCLUSION

For the foregoing reasons, amici curiae strongly urge

this Court to grant the requested Petition for a Writ of

Certiorari of the Cellular Phone Taskforce on the Reha-

bilitation Act issue.

Respectfully submitted,

Of Counsel: Grecory F. Jitka

STEVEN B. FEREN “ogunsel of Record

1886 North University 7770 Healdsburg Avenue

Drive Sebastopol, California

Plantation, Florida 33322 95472

(954) 236-2977 (707) 823-7361

December 4, 2000

Appendix 1

[SEAL]

United States

Architectural and Transportation Barriers Compliance

Board

1331 F Street, NW Washington, DC 20004-1111

202-272-5434 (Voice)

202-272-5449 (TDD)

202-272-5447 (FAX)

October 26, 2000

Mr. Nelson French, Director

White Mountain Catholic Charities

Saint Anthony’s Convent

6 N. McQuatters Avenue

P.O. Box 552

McNary, Arizona 85930

Dear Mr. French:

I am writing regarding The Dispossessed Outreach

Project’s plans to seek assistance from the Arizona

Department of Commerce to develop housing for people

with multiple chemical sensitivities and electrical sensi-

tivities in West Yavapai County. The Access Board is a

federal agency whose mission is to promote accessibility

for people with disabilities. We develop accessibility

guidelines for the built environment, transit vehicles, and

telecommunications equipment, and standards for elec-

tronic and information technology. Our guidelines are

adopted by other federal agencies as enforceable stan-

dards under the Americans with Disabilities Act, Archi-

tectural Barriers Act, and Telecommunications Act. We

Appendix 2

also enforce accessibility standards for federally funded

facilities.

Over the years, the Access Board has learned about

the very important needs of people with multiple chemi-

cal sensitivities and electrical sensitivities. We have heard

from thousand [sic] of people across the country who are

sensitized to chemicals and electromagnetic, radio, and

cell phone emissions and who cannot safely use facilities

because of chemicals released from building materials

and furnishings, exposure to certain types of electrical

equipment and systems, and cleaning products and

pesticides commonly used in operating and maintaining

buildings. The Access Board is initiating a major project

to examine the needs of people with multiple chemical

sensitivities and electrical sensitivities as they relate to

indoor environmental quality, and to develop an action

plan to address those needs. We will be involving people

with multiple chemical sensitivities and electrical sensi-

tivities, the building industry, and other federal agencies,

including the Environmental Protection Agency, in the

project. We also are developing technical assistance mate-

rials that will focus on best practices for addressing the

needs of this population.

Based on our experience, I can state that there defi-

nitely is a need for specially planned and designed hous-

ing for people with multiple chemical sensitivities and

electrical sensitivities. There are many people with these

and related disabilities whose condition is so severe that

they cannot live in conventional housing. We recently

visited Ecology House, an 1l-unit apartment develop-

ment in San Rafael, California; talked with its residents;

Appendix 3

and learned first hand about the special design and con-

struction practices that have made the project habitable

for people who could not tolerate other housing. The

housing project being planned by The Dispossessed Qut-

reach Project would build on the experiences of Ecology

House and meet a real need for healthy and affordable

housing by people who have no other choices.

If I can be of further assistance, please call me at

(202) 272-5451.

Sincerely,

/s/ James J. Raggio

James J. Raggio

General Counsel