Congresswomen Eshoo and Speier Introduce HR 530 to Block FCC Cell Tower Preemption

Updated 11/10/19

In a courageous move to preserve local government control, Federal bill HR 530 was introduced January 14, 2019 in the House of Representatives by California Congresswoman Anna Eshoo, to invalidate the Federal Communications Commission’s (FCC) September 26, 2018 ruling to accelerate the deployment of 5G small cells throughout the U.S.  Congresswoman Jackie Speier was the first to co-sponsored the bill and now there are now   52 Co-Sponsors  and the list keeps going, beginning with Jackie Speier (CA), then- Bonamici (OR), McGovern (MA), Swalwell (CA), Suozzi (NY), Grijalva (AZ), Blumenauer (OR), DeSaulnier (CA), Huffman (CA), Thompson (CA), Pingree (ME), McNerney (CA), McCollum (MN, Cohen (TN), Ryan (OH), Doggett (TX), Bass (CA), Khanna (CA), Cisneros (CA), Engel (NY), Panette (CA), Omar (MN), Lofgren (CA), Levin (MI), Carbajal (CA), Lee (CA), Schakowsky (IL), DeFazio (OR), Neguse (CO), Rice (NY), Brindisi (NY), Cox (CA), Aguilar (CA), Crow (CO), Hill (CA), Lieu (CA), Ocasio-Cortez (NY), Craig (MN), Royal-Allard (CA), Gonzales (TX), Casten (IL), Velasquez (NY),  Deutch (FL), Garcia (IL), Espaillat (NY),Norton (DC), Pappas (NH), Moore (WI), Brownly (CA), Chu (CA), Trone, MD), Rouda (CA)

In addition congressional members, the bill is supported by the National League of Cities, the National Association of Counties, the League of California Cities, the National Association of Telecommunications Officers and Advisors and hundreds of municipalities and public utilities.

Representative Eshoo stated the FCC had failed to listen to reasonable input from communities across the country, cowered to industry interests, and failed to put the public interests first.’” In a January 15, 2019 press statement Eshoo added,  “Having served in local government for a decade on the San Mateo County Board of Supervisors, I understand and respect the important role that state and local governments play in protecting the welfare of their residents,”

HR 530 and the Question of 5G Safety

Federal bill HR 530   is titled- To provide that certain actions by the Federal Communications Commission shall have no force or effect.   It simply states,PRESERVATION OF RIGHTS OF STATE AND LOCAL GOVERNMENTS: Actions by the Federal Communications Commission in ‘‘Accelerating Wireless and Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment’’ (83 Fed.Reg. 5186783) and the Federal Communications Commission’s Declaratory Ruling in ‘‘Third Report and Order and Declaratory Ruling’’ (FCC 18-111) shall have no force or effect.”

Where is the Scientific Evidence of 5G Safety?

It is noteworthy that on December3,  2018 California Congresswoman Eshoo and Connecticut Senator Blumenthal formally wrote a letter asking the FCC for scientific evidence of safety of 5G technology. This 5G technology is currently being marketed and promoted to consumers prior to full development or testing. The Congressmembers have not heard back yet.

Journalist Blake Levitt spoke at the Blumenthal press conference December 3, 2018, explaining the lack of  scientific literature on 5G and underscoring that evidence today indicates that thin skinned amphibians and insects, such as bees, will be most affected by this technology with disastrous results. She concluded that“The FCC is completely unprepared, unable and possibly unwilling to oversee 5G for safety, even at it barrels toward us.”   Citizens are now writing letters to their local congress members asking for support for this effort by Congress members Eshoo and Speier as well as 1) an investigation into the FCC  2) Scientific evidence of 5G safety  3) A  moratorium on 5G deployment  as well as 4)  reevaluation of FCC exposure standards to consider biologic (non-thermal) not just heat effects. Blake Levitt Speaks at Senator Blumenthal Press Conference Dec 3, 2018

FCC “5G Fast Track Plan” is Industry Backed

The FCC Order, FCC 18-111 is an industry backed effort intended to remove barriers and allow for speedy placement of what are termed small cells for wireless communications. These barriers are the cities themselves, who wish to maintain their own conditional use permitting process to approve of these small cells with 1) public input 2) thorough city planning commission input and 3) the ability to charge a fair price for rental of the utility poles in the valuable local real estate market of the  “Public Right of Way”.

These so called “Small Cells” are not so small and will have powerful 4G and likely many other broadband frequencies emitting modulated electromagnetic radiation densely located about every 300 feet, close to homes, schools and businesses. They are lower to the ground with higher exposures 24 hours a day. This will be in addition to large refrigerator sized battery backup and accessory equipment on the street to support each antenna. Undergrounding of equipment will not be permitted.  There will only be what is termed “ministerial” permits that have to be approved in 60 to 90 days.

Cities in Chaos

This has caused chaos and angst in cities who will be forced to lose what remaining control they have in this process.  The Telecommunications Act of 1996 and the Spectrum Act of 2012 are already extremely restrictive in terms of options for cities to place towers and also do not allow for refusal or consideration of refusal of cell towers on the grounds of health or environmental concerns.

70 Cities in Court to Challenge New FCC Rules

After the September 26, 2018 Declaratory Ruling was passed by the FCC, more than a dozen cities including Los Angeles, Seattle and San Jose, challenged  the FCC over these restrictions. The wireless industry states they will loose $2 Billion, but the cities consider that it is instead a giveaway to industry.  The Ninth Circuit Court was asked to review the rules and give an opinion.  On November 6, 2018, these lawsuits were consolidated with several other lawsuits in the western States including Las Vegas and Portland, and through a lottery, sent to the 10th Circuit Court of Appeals.

10th Circuit Court of Appeals Transfers Case to 9th Circuit

On January 10, 2019 the Tenth Circuit Court of Appeals denied the motion to stay the FCC Declaratory Ruling FCC 18-133, stating that the cities did not demonstrate that they would suffer irreparable harm without the stay. The same day however, the Court granted a transfer of the petition by San Jose and allied cities (including Burlingame, San Bruno and San Francisco) against the FCC back to the Ninth Circuit Court of Appeals where it originated.

In the original filing the cities have argued that the FCC Declaratory Ruling is ambiguous, overreaching, unreasonable and raises constitutional issues. The cities argue that “A stay will “serve the public’s strong interest in “preserving the status quo ante litem until the merits of a serious controversy can be fully considered.”

San Jose Mayor Liccardo Outspoken About FCC Overreach

Mayor Sam Liccardo, who has led the fight against the FCC Order in San Jose, resigned from the FCC’s  Broadband Deployment Advisory Committee in January 2018  stating,  “It has become abundantly clear that despite the good intentions of several participants, the industry-heavy makeup of BDAC will simply relegate the body to being a vehicle for advancing the interests of the telecommunications industry over those of the public,”  Mayor Sam Liccardo Resignation Letter, January 25, 2018.


U.S. Court of Appeals Motions, Oppositions and Respondents in FCC Lawsuit by Date


Small Cities versus Big Telecomm

This will be a David and Goliath confrontation as the National League of Cities spars with the Telecommunications Industrial Complex with overfilled coffers and much carefully strategized political muscle. A Harvard Ethics Fellow, Norm Alster, has written a eye-opening investigative  paper entitled Captured Agency: How the Federal communications Commission is Dominated by the industries it Presumably Regulates.

House Committee Investigates FCC Influence on Carriers to Game the System for Recent FCC local Small Cell Preemption Order.

The House Energy and Commerce Committee has asked the Federal Communications Commission for all records pertaining to the recent FCC order to preempt local control in the placement of small wireless systems. The committee alleges that the FCC may have acted improperly in communicating with and influencing carriers to engage in a legal challenge after the City of San Jose and others placed a request for Stay order on FCC 18-111.  AT&T sued  the FCC for refusing to adopt language in FCC 18-11 stating that if not approved within the shot clock the permit would be “deemed granted. They argue this will set them up to file numerous and financially wasteful lawsuits if cities cannot comply in a timely manner. Three other carriers sued in 3 other separate District Circuit Court of Appeals thus complicating the original request for stay.


HR 7236 New Radiofrequency Radiation “Safety Act”  Removes Telecom Liability For Injury From RF Emissions

Despite being indicted on charges of campaign fraud in August 2018,  San Diego congressman Duncan Hunter (R- San Diego) went on to win re-election in November and quickly introduced  H.R. 7236 – Radiofrequency Radiation Site Safety Information Act of 2018, on Dec 10, 2018. This proposed Federal legislation to eliminate liability of injury from cell towers is ironic on the heels of the FCC Ruling to further accelerate deployment of “small cell” towers and promote 5G technology, which has not been tested for health or environmental harm. Federal legislation S 3157-STREAMLINE Small Cell Deployment Act is also poised to soon make law the FCC 18-111 Ruling being reversed by Eshoo’s HR530  and accelerate deployment of “small cells”.

In HR 7236 the stated goal is for the FCC to  “promulgate regulations that provide for the establishment of an online database that contains safety information relating to the radiofrequency radiation emissions of covered facilities.” However, it later adds a clause that removes all liability in a civil action for RF emissions for “the licensee of a covered facility, the owner or property manager of a site where a covered facility is located, any person performing work at such a site or employing an individual performing work at such a site, and such other persons as the Commission considers appropriate…”, stating “A person described in subsection (b)(1) with respect to a covered facility shall not be liable in any civil action for an injury alleged to have been caused by radiofrequency radiation emissions of such facility…”

Preemption of Local Rights by States and Federal Governments: A Looming Broad Issue

This fight highlights the dangers and threats of Federal preemption of local governments in many areas that affect public health including agriculture, toxics reductions and climate change policies. In a recent paper published in the American Public Health Association Journal entitled “State Preemption: Threat to Democracy, Essential Regulation, and Public Health”   JL Pomeranz et al make the case for maintaining local government authority. They state, “Modern preemption represents the convergence of industry-sponsored deregulation and an undermining of local democracy…State legislatures have gone so far as to eliminate their own ability to act on a wide range of issues while preempting local control over these same issues. States also have enacted punitive preemptive measures [“super-preemption”] under which local governments and officials can be subject to civil and even criminal penalties for adopting legislation that may be contrary to state law. Stakeholders and advocates across public health topic areas can work together to present a stronger opposition to preemption and support minimum standards that strengthen the health of all communities.

International Scientists Are Calling for a 5G Moratorium

The 5G and “small cell” acceleration has put a spotlight on accelerating scientific research on the adverse health and environmental effects of long term exposure to non-ionizing radiation from wireless devices and cell towers.  Over 230 researchers and physicians from over 40 countries have signed a 5G Appeal  for a moratorium on the roll-out of 5G, expressing their concerns not only about the lack of safety testing for 5G but also about the inadequacies of current increasing  EMF exposure from 3G and 4G emissions.

The 5G Appeal  states” research has convincingly confirmed serious health risks from RF-EMF fields from wireless technology.  The world’s largest study (25 million US dollar) National Toxicology Program (NTP), shows statistically significant increase in the incidence of brain and heart cancer in animals exposed to EMF below the ICNIRP (International Commission on Non-Ionizing Radiation Protection) guidelines followed by most countries. These results support results in human epidemiological studies on RF radiation and brain tumour risk.  A large number of peer-reviewed scientific reports demonstrate harm to human health from EMFs.”

Congressional Events on 5G- Feb 6, 2019 and Feb 10-13, 2019

This next Wednesday in Washington DC at the Dirksen Senate Building there will be a congressional hearing to focus on how to win the 5G race which include industry members looking at  “key steps to maintain U.S. global leadership in next-generation communications technology,spectrum needs to accelerate deployment, and new applications and services consumers can expect with 5G deployments. The hearing will also examine current efforts to modernize infrastructure siting policies and the security of 5G networks.” Will this be a “fight for the future” for the U.S. telecom industry agenda or for public and environmental health? It doesn’t look good for the later.

A keynote Topic for the meeting listed on the website states:

The 1996 Telecom Act is 23 Years Old – Is it Time for a New One?

“23 years after the 1996 Telecom Act passed, where are we?  Has the Act outlived its usefulness?  Do we need a revision, an update, or something totally new?  This panel will discuss the legacy of the current Act and explore the key questions facing consumers, carriers, and commissions in 2019: How do we advance competition?  How can we advance broadband deployment and adoption?  Do we need a new universal service charter that will ensure that broadband deployment continues to be equitable across the country?  How do we make sure that consumers continue to receive the benefits of universal service, particularly in areas where federal funds have been used to advance or sustain deployment?”


Citizens and Cities Are Writing Their Congressional Representatives

The National League of Cities as well as the citizens they represent are contacting  their respective U.S. House of Representative  members (2,105 members) in Congress as well as their respective   U.S. Senate Congressional  members (404 members), to request one or more of the following: To

  • Support HR 530
  • Oppose S 1699 -The STREAMLINE Small Cell Deployment Act- 2019
  • Oppose S 3157– The STREAMLINE Small Cell Deployment Act- 2018-Old and reintroduced as S 1699
  • Oppose HR 7236
  • Provide scientific evidence of 5G safety
  • Have a moratorium on 5G deployment
  • Update and reevaluate the FCC safety guidelines for wireless technology that considers biologic and not just thermal harm from RF emissions
  • Revise Section 704 of the 1996 Telecommunications Act  to allow consideration of health or environmental effects in the placement of cell towers


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