Physicians for Safe Technology

Wireless Technology and Public Health

Legal Issues RFR, Cell Towers, Wireless Devices

As more cities are asked to approve cell towers, citizens and cities are standing up to telecom carriers to legally oppose cell antenna and towers. Non profit groups and citizens are also challenging the basis of safety regulations by the FCC and the FDA. In a very thorough and well-researched article in the Pittsburg Law Review, Pennsylvania attorney Hala Mouzaffar gives a detailed history of how FCC standards for wireless radiation came about and why they have not been changed. The FCC Keeps Letting Me Be: Why Radiofrequency Radiation Standards Have Failed to Keep Up With Technology. (2012) Hala Mouzaffar. University of Pittsburg Law Review. Vol 83. No 1. Oct 6, 2021. https://lawreview.law.pitt.edu/ojs/lawreview/article/view/826 Below are resources and case law.

Updated 3/24/23

The Challenge of Legislation for Non-ionizing Radiation

In 1976 NRDC attorney Karen Massey wrote “The Challenge of Nonionizing Radiation: A proposal for Legislation“, published in the Duke Law Journal, looking a the benefits, adverse effects and the need for legislation on prevention policy. The Challenge of Non-ionizing Radiation: A proposal for Legislation”. Duke Law Journal 1979. Vol 105. Karen Massey.https://scholarship.law.duke.edu/dlj/vol28/iss1/3/ The article quotes on page 149 , “[t]his type of man-made radiation exposure has no counterpart in man’s evolutionary background; it was relatively negligible prior to World War II…Unless adequate monitoring programs and methods of control are instituted in the near future, man may soon enter an era of energy pollution of the environment comparable, in public health and ecologic implications, to the chemical pollution of today.”269

She points out,” “At the outset, it should be reemphasized that non-ionizing radiation is a multiagency problem. While this makes it administra- tively difficult to handle, it may in the long run make it a stronger and better program. It cannot be allotted to a single agency, seemingly giving other agencies a license to ignore the problem.387 The task, then, is to ensure that all agencies involved with this problem are encompassed in a structure that encourages communication and allows critique of the proposed programs from the various agency viewpoints and scientific backgrounds. This goal must be accomplished in both the research and the regulatory fields, without unnecessary disruption of ongoing programs.”

***The Motorola vs Murray Product Liability Lawsuit on cell phones and brain cancer is just now being heard after about 20 years of negotiating standards, admissibility and expert witnesses. 5 judges have presided over this lawsuit. Trial started Sept 12 , 2022 and this early phase will last up to a few weeks and can be heard on audio. See Safer EMR for details on how to hear this trial.

The Rights of Citizens in the Deployment of Wireless Infrastructure Webinar

In March 2023 Americans for Responsible Technology and the BroadBand International Legal Action Network have produced this extremely valuable webinar, The Rights of Citizens in the Deployment of Wireless Infrastructure for the public. Speakers include

  • Doug Wood, founder and National Director of Americans for Responsible Technology, a non-profit organization
  • Brenda Martinez, a founding member of Fiber First LA, a non-profit coalition advocating for safe, reliable and economical fiberoptic broadband for everyone.
  • Scott McCollough, former Assistant Attorney General for the State of Texas for 10 years and representative for the State before regulatory agencies with jurisdiction over gas, telephone, water and electric utilities. He is now in private practice focusing on public law and regulation relating to telecommunications, and recently argued the successful case against the FCC on behalf of Environmental Health Trust and Children’s Health Defense.
  • Andrew Campanelli, a well known litigation and Telecommunications Act attorney who handles local, state and federal telecommunications cases, and has authored numerous local codes and ordinances that provide protections for citizens while complying with all FCC requirements. Since beginning his legal career as a litigator in 1992, Mr. Campanelli has handled over 7,000 civil and criminal cases, and he has litigated over 1,000 cases to conclusion.
  • Odette Wilkens, founder, President and General Counsel for the non-profit organization Wired Broadband, Inc. She is a strategic advisor and legal counsel with 20 years of experience in technology and general commercial transactions. She was formerly a corporate attorney with IBM and Senior Director of Legal Affairs at A&E TV. Recently Odette has been spearheading the grassroots opposition to the giant wireless towers that are being installed all over New York City.
  • Julian Gresser, an international attorney, professional negotiator, inventor, and author of several books, including his latest one “How the Leopard Changed Its Spots” to be published in May 2023. He is an expert in international negotiation, and was twice a Mitsubishi Visiting Professor at the Harvard Law School and a visiting professor at MIT’s Program on Science, Technology, and Society. He is the founder and president of Big Heart Technologies, and the Broadband International Legal Action Network (BBILAN), which is our partner in producing this series of webinars.
  • Download Scott McCollough slides
  • Download Odette Wilkens slides
  • Download Julian Gresser slides

Resources

Attorney Information

Lawsuits  and Petitions -Telecom, FCC, FDA, HHS

Lawsuits In Process

*IPhone Safety Limits 2022

Cohen vs Apple Lawsuit Lost at Supreme Court with No Appeal -May 22, 2023

Cohen vs Apple- 2022 United States Supreme Court. Court of Appeals for the Ninth Circuit. Plaintiffs state that Iphones were found to regularly exceed FCC safety limits in independent testing and that Apple breached state tort and consumer-fraud laws by misrepresenting and failing to disclose the amount of radiofrequency (“RF”) radiation emitted by iPhones. Plaintiffs alleged that RF radiation emitted by iPhones regularly exceeded the federal exposure limit, and they brought eight claims against Apple under state tort and consumer-fraud laws.  The district court entered summary judgment for Apple, holding that the plaintiffs’ state-law claims are preempted by federal law. We have jurisdiction under 28 U.S.C. § 1291 and affirm. We hold that the district court had subject matter jurisdiction and that plaintiffs’ claims are preempted. The panel also held that the twin Communications Acts, the Communications Act of 1934 and the Telecommunications Act of 1996, granted to the FCC broad regulatory powers over wireless. 

Cohen vs Apple Appeal Cohen v. Apple – Petition for Writ of Certiorari   to U.S. Court of Appeals  Ninth Circuit. Jan 23, 2023.  The Petition reviews statutory and regulatory law with regards to the FCC and telecommunications . The Petitioners argument to the Ninth Circuit Court … “This case clearly presents an opportunity to resolve a longstanding split and, at the same time, to settle a far more fundamental rift in the jurisprudence of implied agency preemption. In doing so, the Court can ensure that lower courts remain faithful to the Constitution’s balance between both the state and national governments, on the one hand, and the judicial, executive, and legislative powers, on the other….When a law of the United States is said to preempt state law, our “system of dual sovereignty between theStates and the Federal Government,” Gregory v. Ashcroft, 501 U.S. 452, 457, 460 (1991), requires that the inquiry
“start[] with the basic assumption that Congress did not intend to displace state law,”

Cohen vs Apple Updated information March, 2023.  Supreme Copurt- https://www.supremecourt.gov/DocketPDF/22/22-698/257137/20230315150750426_22-698%20%20Amicus%20Brief.pdf

SUMMARY OF ARGUMENT: This case presents an important recurring question of federal law that requires resolution by the Court. The Petition should be granted. Courts should first ensure Congress intended to grant agency preemption powers on the subject at hand, and then find preemption by regulation only when the agency has far more clearly expressed an intent to preempt within a rule or order that has been promulgated through appropriate agency proceedings. In this case, the FCC’s intention to not preempt state tort, consumer and health and safety laws touching emissions from devices other than personal wireless facilities is clear. The Ninth Circuit’s contrary opinion was erroneous and must be corrected.

Final Update 5/23/23- Fegan Scott LLC, the plaintiffs attorneys announced that their class action lawsuit against Apple and Samsung in which they alleged that the manufacturers knowingly subjected smartphone users to radiofrequency (RF) electromagnetic radiation levels in excess of mandated limits while misrepresenting the smartphone’s safety has been lost. On October 29, 2020, the Court found that the legal claims interfered with the FCC’s authority and were thus preempted under federal law and dismissed the suit. On August 26, 2022, the Ninth Circuit Court of Appeals affirmed the district court’s dismissal of the lawsuit on preemption grounds. May 22, 2023 the United States Supreme Court denied Fegan Scott’s petition for certiorari (request for leave to appeal). 

*Petition for Imminent Hazard Ruling by the Department of Health and Human Services 2021

Americans for Responsible Technology, EHTrust, California Brain Tumor Association and others vs FDA -PDF  Filed Dec 21, 2021. Docket FDA-2021-P-1347. Petition for Imminent Hazard Ruling by the Department of Health and Human Services concerning the current FDA policy on the safety of human exposure to non-ionizing radiofrequency radiation. Filed December 20, 2021. “Petitioners respectfully request that the HHS Secretary: (i) declare an Imminent Hazard pursuant to CFR 21 Part 2 Sec. 2.5 (Imminent Hazard to the Public Health) within 30 days, and (ii) communicate affirmatively to all private and public entities affected by the Imminent Hazard the present uncertainty relating to whether the FDA’s official policy and regulations concerning RF radiation emitted from non-medical devices are APA-compliant.”  Counsel for ART are James S. Turner, Julian Gresser, and Jospeh Sandri.  FDA Docket was opened  FDA-2021-P-1347 for public comment regarding how wireless radiation from cell phones, laptops, smart meters, baby monitors, wireless antennas and other wireless devices.  has affected your health. To register comments go to Citizen’s Petition from Americans for Responsible Technology at https://www.regulations.gov/commenton/FDA-2021-P-1347-0001

Lawsuit Won

*Reevaluation of FCC RF Safety Standards 2020 -Lawsuit won

EHTrust and CHD vs FCC –Reevaluation of FCC RF Safety Standards. Filed July 30, 2020. Lawsuit filed for failure to protect human health and the environment by dismissing scientific evidence of harm from wireless radiation. Lawsuit won by EHTrust and Petitioners August 13, 2021. District of Columbia US Court of Appeals Decision August 13, 2021.  PST Blog on the lawsuit “Landmark Lawsuit Successful Against FCC for Failing to Reevaluate 5G and Wireless Safety” Sept 23, 2021

*Arthur Firstenberg vs City of Santa Fe 2021

SANTA FE ALLIANCE FOR PUBLIC HEALTH AND SAFETY, ARTHUR FIRSTENBERG, and MONIKA STEINHOFF. Vs City of Santa Fe.  Supreme Court of the United States. Petition for a Writ of Certiorari May 27, 2021 . Petitioners Petitioners requesting a declaratory judgment that the preemption with respect to the “environmental effects of radio frequency emissions” in the Telecommunications Act of 1996 (“TCA”), violate due process, free speech, the right to petition, the right of access to courts, and constitute a taking without just compensation, or in the alternative a judgment that “environmental effects” does not mean “health effects” . Originally filed May 6, 2020. https://www.cellphonetaskforce.org/wp-content/uploads/2021/10/Santa-Fe-Alliance-Petition-for-Certiorari-as-filed.pdf

*City of Portland vs the FCC 2020

The City of Portland vs the FCC-United States- UC Court of Appeals Ninth Circuit. Judgment filed August 12, 2020. Numerous local governments, public and private power utilities, and wireless service providers. Review of Small Cell Order, the Moratoria Order, and the One Touch Make-Ready Order.  FCC- 18-111, FCC-18-133, The first two orders spelled out the limits on local governments’ authority to regulate telecommunications providers. The third order was intended to prevent owners and operators of utility poles from discriminatorily denying or delaying 5G and broadband service providers access to the poles. The Court gave deference to the FCC and upheld 2 of the 3 provisions. The exception was the Small Cell Order provision dealing with the authority of local governments in the area of aesthetic regulations. The panel also held that the FCC’s requirement that all aesthetic criteria must be “objective” lacked a reasoned explanation. The panel rejected constitutional challenges under the Fifth and Tenth Amendments to both orders. https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/12/18-72689.pdf

Lawsuits ADA Accommodation 

Lawsuits Cell Phones and Cancer

Murray vs Motorola. Case started 2001

Phonegate Canada: Court authorizes class action against Apple and Samsung. Sept 27, 2022. Alert Phonegate. https://phonegatealert.org/en/class-action-apple-samsung/

Class Action Lawsuit Against Apple and Samsung Electronics to Demand Jury Trial.  UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION Plaintiffs state cell phones exceeded the maximum allowable limit for radiofrequency (“RF”) radiation exposure.  8/23/19.   https://www.classaction.org/media/cohen-et-al-v-apple-inc-et-al.pdf

Litigation Alert: Cell Phones as Carcinogens. Weinberg, Wheeler, Hudkins, Gunn and Dial. https://www.wwhgd.com/newsroom-news-121.html

CTIA-The Wireless Association v. City of Berkeley, California. June 28, 2018. https://www.scotusblog.com/case-files/cases/ctia-wireless-association-v-city-berkeley-california/

Brain cancer victim sues cell-phone providers for $800 million. Aug 4, 2000. Computerworld. https://www.computerworld.com/article/2596665/brain-cancer-victim-sues-cell-phone-providers-for–800-million.html

Lawsuits Cell Towers 

Pittsfield, Massachusetts. 2022 Board of health Orders Cease and Desist Order Then Removes it. Cease and Desist Order.  https://mdsafetech.org/2022/02/09/board-of-health-orders-verizon-to-cease-and-desist-in-pittsfield-massachusetts-cell-tower-battle/

Federal lawsuit challenges new cell tower, 5G antennas in Lake Tahoe. California. Feb 11, 2021. https://www.bizjournals.com/sacramento/news/2021/02/11/cell-towers-lake-tahoe-lawsuit.html

Hillsborough, California vs Crown Castle, LLP. 4/25/2018.  Case settled. https://www.hillsborough.net/DocumentCenter/View/3013/Crown-Castle-v-City-Council-of-the-Town-of-Hillsborough?bidId=  Hillsborough Wireless Facilities Update https://www.hillsborough.net/482/Wireless

Cell Tower News: $50K tower damage; suing American Tower. July 25, 2014. RCRWireless. https://www.rcrwireless.com/20140725/cell-tower-news/cell-tower-news-suing-american-tower-50k-tower-damage-8

San Carlos favors settling cell tower suit. The Daily Journal. Jan 25, 2012. AT&T vs San Carlos. https://www.smdailyjournal.com/news/local/san-carlos-favors-settling-cell-tower-suit/article_e03de02f-f7f4-5f73-b617-fdaf4e265a5e.html

San Mateo Grand Jury Report  on Cell Towers: Public Opposition and Revenue Source. 2011.  Article on San Mateo Grand Jury Report. County Responds To Cell Phone Tower Concerns. Aug 9, 2011. The Patch.  Peninsula cities, telecoms at odds over new antennas on public land. DEc 10, 2011.

San Diego, and Development Services Department of City of San Diego. Judgment “Holding that the city of San Diego is not a “person” within the meaning of the UCL” 2007.  https://casetext.com/case/in-re-cell-tower-litigation-3

Lawsuits Electric Vehicles

NISSAN LEAF ELECTROMAGNETIC RADIATION LAWSUIT FILED IN GEORGIA.July 11, 2021. 2015 Nissan LEAF owner says Nissan should pay $1 billion for EMF radiation sickness. https://www.carcomplaints.com/news/2021/nissan-leaf-electromagnetic-radiation-lawsuit.shtml

Lawsuits and Notifications Smart meters

Letter of complaint against Smart Meters 2023

Letter of complaint against Smart Meters 2023 The UK EM Radiation Research Trust (RRT) would like to remind energy suppliers and the ombudsman that a smart meter is not a legal requirement and call upon you to revisit the UK Government’s official advice… This lawful notice of liability is designed to be used as evidence in court if needed and intends to enlighten you and protect you from attracting civil and criminal liability in relation to your action(s). Take Notice you have been fairly and equitably fore-noticed and fore-warned.  https://www.radiationresearch.org/wp-content/uploads/2023/01/Smart-meter-complaint-to-Energy-Supplier-and-Ombudsman-1-1.pdf

Appeals from Citizen Groups

Videos Appeals City Council 

Headlines

Videos of Cell Tower Disputes 

Court Reports Other  

San Mateo Grand Jury Report  on Cell Towers: Public Opposition and Revenue Source. 2011

Department of Public Health Reports

SF Department of Public Health Radiofrequency Program. https://www.sfdph.org/dph/EH/RadioFrequency/default.asp

See Also