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by Suzanne Burdick, Ph.D. | Sept 6, 2024 | The Defender – CHD
Residents of Pittsfield, Massachusetts, who sued the city over a Verizon cell tower they allege made them sick must bring their complaint to the Federal Communications Commission (FCC) for relief — not to the court system, a judge ruled Wednesday.
Moreover, the residents’ local health authorities — in this case, the Pittsfield Board of Health — can’t act on the resident’s behalf by requiring the telecom giant to relocate or remove the tower because doing so would conflict with the FCC’s authority over radiofrequency (RF) radiation exposure limits, the ruling said.
The ruling by Berkshire County Superior Court Judge Francis E. Flannery came as a blow to the residents who have been fighting for years to relocate the Verizon cell tower installed in their neighborhood in March 2020.
Miriam Eckenfels-Garcia, director of Children’s Health Defense’s (CHD) Electromagnetic Radiation (EMR) & Wireless program, told The Defender, “We are heartbroken for the residents that have fought for so long.”
“It is hard to watch them suffer, being evicted from their homes,” she said, “and to witness the local health board — that knows their situation best and is trying to protect them — being prohibited from doing its job.”
Eckenfels-Garcia said the ruling underscores the importance of fighting proposed cell towers and small cells “as soon as they are proposed … during the permitting process when there is still political power to push back.”
“Once a tower is up,” she said, “getting relief is almost impossible. While CHD will keep fighting on behalf of individuals and communities, we need to increase the political pressure and advocate for legislative change.”
‘We think the judge was wrong’
After noticing a sharp spike in illness after the tower went up, a group of residents reached out to their local health board for help.
In February 2022, the health board — after researching the health impacts of RF radiation emitted by the tower — issued a cease-and-desist order to Verizon if the company refused to discuss removing or relocating the tower. Verizon sued to overturn the order.
Lawyers supported by CHD intervened, arguing that the residents’ local health authorities should be able to act on residents’ behalf because the Pittsfield Health Department’s mission is to “protect and improve the health and quality of life of its residents.”
Flannery disagreed, writing that “the Board is preempted from regulating the operation of the tower due to health concerns from RF emissions that are within FCC guidelines.”
The FCC is the federal agency that established guidelines — or limits — for what level of RF radiation cell towers can emit without being unsafe to humans. Experts noted that the guidelines are decades out of date and fail to take current science into account.
Plaintiff Courtney Gilardi — a mother who alleged that her family became ill and had to move because of Verizon’s tower — told The Defender she’s upset about the ruling.
“We think the judge was wrong in ruling that the FCC is the exclusive body that can give relief to individuals harmed, displaced, sickened and even killed by a cell tower,” Gilardi said.
The plaintiffs will appeal “and trust that the higher courts will correct the error,” she said.
“In the meantime,” Gilardi added, “this decision still does not prevent our community from finding a voluntary, negotiated solution that everyone — including Verizon — can accept. We just want to go home and live in peace.”
The Defender asked Mike Hugo, director of policy and governmental affairs for the Massachusett Association of Health Boards, how the board can protect its citizens if it is preempted from doing so. He was unable to respond by our deadline.
Issuing a complaint with the FCC isn’t realistic
In his opinion, Flannery acknowledged that the plaintiff’s lawsuit raises “serious concerns” about the health effects of RF radiation. “However,” he wrote, “the court’s analysis and decision is necessarily focused only on the legal issue at hand.”
According to Flannery’s interpretation of the law, the local health board’s cease-and-desist order conflicted with the FCC’s regulations and the Telecommunications Act of 1996, the federal law for siting cell towers.
By law, the FCC is the authority that sets RF emission limits and oversees where cell towers that meet those limits can be placed.
According to Gilardi, the FCC fails to consider people’s health when deciding where cell towers can go.
“It has now been almost 30 years of telecom putting cell towers wherever they wanted to without consideration for health,” she said. “How are they going to fix this?”
According to the judge, the Verizon tower in the Gilardi neighborhood complies with the FCC’s emission guildeines, so if Gilardi and the other plaintiffs have an issue with it, they have to take it up with the FCC.
However, W. Scott McCollough — lead litigator for CHD’s EMR & Wireless cases and attorney for the plaintiffs — told The Defender that isn’t a realistic solution.
The FCC’s RF emission limits are considered to be “generally applicable” — but the agency doesn’t have a system for handling complaints from people who say the limits aren’t protecting them from harm, he said.
Gilardi agreed, saying:
“The FCC is a federal agency and cannot handle this kind of case since it involves private rights, not public rights. Under our Constitution, only courts can handle this kind of dispute. That explains why the FCC does not even have a process for complaints like this.”
‘This is just passing the buck’
Both Gilardi and McCollough pointed out that the District of Columbia Circuit U.S. Court of Appeals in 2021 told the FCC it needed to provide a better explanation for why its current limits — set in 1996 — adequately protect adults, children and the environment from harm.
“But even now,” Gilardi said, “the FCC has flatly refused to honor the judicial command.”
They doubted that the FCC, even if it had a mechanism for hearing the plaintiffs’ complaint, would take meaningful action.
Even if the FCC does change its RF limits, McCollough said, that change would be prospective and wouldn’t likely solve Gilardi’s problem. “I can guarantee you that the industry is going to say to grandfather in all existing sites.”
Moreover, Gilardi said, telling “regular people of modest means that are already sick and stretched past what normal people should have to handle” that they have to go complain to the FCC “completely lacks any care for the individuals whose lives have been destroyed.”
“This is not a reasonable or meaningful path to justice,” she added, ”This is just passing the buck to an agency that has no intention of ever facing the consequences or remediating them.”
McCollough pointed out that the judge didn’t rule on what’s called “expressed preemption,” meaning he didn’t say the health board couldn’t be involved in a cell tower siting issue just because it’s a local authority.
McCollough said, “He went off on what is known as ‘conflict preemption’ and specifically whether the local board’s action would create an obstacle to attainment of the purposes and objectives behind the FCC’s exposure limits. He held that it would.”
Meanwhile, the plaintiffs’ cause is just, McCollough said.
“It’s just that maybe we’re going to have to take it up to another courthouse level,” he said. “There are many reasons why this opinion really doesn’t fit with what the Supreme Court of Massachusetts has said about this very topic of conflict.”
Suzanne Burdick, Ph.D., is a reporter and researcher for The Defender based in Fairfield, Iowa.