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June 8, 2021

Honorable Asm. [Name]

Re: Please Vote No on SB.556, AB.537 and SB.378 To Preserve Local Control over Wirless Infrastructure

Dear Assemblymember [Name],

Votes for Senate Bills 556 (Dodd), AB.537 (Quirk) and SB.378 (Gonzalez) will likely create nothing but significant harms, unrest, legal controversy and unfunded liabilities due to a lack of adequate insurance to cover claims for injury, illness or death from the resulting EMF/RF Electromagnetic Microwave Radiation (RF-EMR) pollution. The two bills being heard at the June 9 Assembly Local Government Committee represent 2/3’s of California’s 2021 Triple Threat 6-7-8 — SB.556, AB.537 & SB.378 — three terrible broadband bills that work together to demolish Local Control over Wireless infrastructure.

While SB.556 and SB.378 provide for a faster rollout of dense 4G/5G so-called “small” Wireless Telecommunications Facilities (sWTFs), such benefits come at a large cost to the cities, counties and constituents. These bills are simply unnecessary, as over the last four years, local communities, at great expense, have updated their telecommunications ordinances to be able to efficiently add more broadband service to their communities. These bills would create significant harms to public safety, privacy and property values. Most importantly, SB.556, AB.537 and SB.378, if passed, would have no real power to close the Digital Divide, as claimed.

Your cities, counties and constituents do not want their local ordinances set aside to subsidize and further enrich multi-billion dollar Telecoms. Have you asked them yourselves? Please do.

Many cities, counties, labor organizations and citizen groups who opposed a very similar bill in 2017, SB.649 — Streamline sWTF Deployment — are opposing SB.556, AB.537 and SB.378 for the same reasons. Some of those California cities (Los Angeles, San Francisco, San Jose, Monterey, and others) are now party to the active Petition for a Writ of Certiorari at the US Supreme Court opposing FCC Order 18-133, the very FCC “presumptive” sWTF order that these CA bills are attempting to reaffirm.¹

The so-called “Small” Wireless Facilities agenda at the Federal level is crumbling because the FCC has been a serial loser in Federal Court from 2019 to 2021, with significant losses and clarifications in the Rulings in the following US Court of Appeals cases:

1. Aug 2019 Ruling in Case No. 18-1129, Keetoowah et al. v FCC — portions of FCC Order 18-30 re: environmental exception were vacated and the definition for “Small Wireless Faclities” was erased, leaving all of the benefits of so-called “Small” Wireless Facilities without foundation²
2. Oct 2019 Ruling in Case No. 18-1051, Mozilla et al. v. FCC — portions of FCC Order re: preemption of states’ authority were vacated meaning that the Wireless industry has no preemption for wireless broadband/information services³
3. Mar 2020 Ruling in Case No. 19-1085, IRREGULATORS v FCC — FCC rules that have enabled cross-subsidies and ill-gotten tax benefits by Telecoms are now state matters — ready for overdue correction⁴
4. Aug 2020 Ruling Case No. 18-72689, Local Govt v FCC — portions of FCC Order 18-133 re: local aesthetics standards were vacated (the rest is now headed to the U.S. Supreme Court)⁵
5. Pending, July 2021 (est.), in Case No. 20-1025, Environmental Health Trust et al. v FCC: Challenging FCC Order 19-126 that violated many laws and glossed over substantial evidence when it decided on Dec 4, 2019 that the FCC RF Electromagnetic Microwave Radiation (RF-EMR) guidelines — selected in 1996 — provide adequate protection of the public⁶
6. Pending, July 2022 (est.), Children’s Health Defense et al. v FCC: Challenging FCC Order 21-10 for deciding that rules for wireless over-the-air reception devices (OTARD) can be expanded to include hub and relay transmission antennas that would be used to distribute broadband-only fixed wireless services.⁷

The authors of this letter and Wire California are joining with the League of California Cities, the Communications Workers of America, hundreds of California cities, and millions of Electromagnetic Sensitive (EMS) Californians who oppose these bills that attempt to demolish local control and force cities to subsidize an already obscenely profitable, multi-billion dollar industry, Big Wireless.

California deliberated on this predatory sWTF agenda in 2017 and landed in favor of local control. The deliberation ended with votes of 22-18 in the Senate, 46-33 in the Assembly and a veto by Gov. Jerry Brown, writing on Oct 15, 2017:

California Gov. Jerry Brown:

“I believe that the interest which localities have in managing rights-of-way requires a more balanced solution than the one achieved in this bill [SB.649].”

No amount of Covid19-inspired, Digital Divide rhetoric can paper over the transparent power grab behind SB.556, AB.537 and SB.378. These bills do have the power to force private wireless companies to serve these currently underserved communities, both rural and urban.

For over two decades, the CA Legislature and the CPUC has allowed these Telecom companies to cherrypick and ignore these underserved communities in order to maximize their profits, while overlooking the benefits of wireline broadband to every home via State Public Telecommunications Utilities (SPTUs): the only broadband service that has the benefit of Title II-regulated just and reasonable rates.

Fiber Optics to the Premises (FTTP) — with public access to all Fiber installed in the public rights-of-way — is the way to actually close the Digital Divide because it can deliver essential broadband service at permanently lower prices — and in the most energy-efficient manner.

Also — unlike Wireless broadband —FTTP broadband will preserve the quiet enjoyment of streets, a right that the residents of each CA community needs their cities and counties to protect, consistent with the 2019 CA Supreme Court ruling in T-Mobile v San Francisco.

The 2019 CA Supreme Court Ruling in T-Mobile v San Francisco states:

“The City has inherent local police power to determine the appropriate uses of land within its jurisdiction. That power includes the authority to establish aesthetic conditions for land use . . . We also disagree with plaintiffs’ contention that section 7901’s incommode clause limits their right to construct [telephone] lines only if the installed lines and equipment would obstruct the path of travel. Contrary to plaintiffs’ argument, the incommode clause need not be read so narrowly.

. . .”Travel is not the sole use of public roads; other uses may be incommoded beyond the obstruction of travel. (T-Mobile West, at pp. 355-356.) For example, [Telecom] lines or equipment might generate noise, cause negative health consequences, or create safety concerns. All these impacts could disturb public road use, or disturb its quiet enjoyment.”

There is simply no reason to take away local control from cities and counties that wish to add broadband in the way that is best for their residents — many prefer wired Internet, video/audio streaming and gaming (information service) via fiber optics and only wireless calls (telecommunications service) via Wireless infrastructure, which is consistent with the Federal Telecom law and 25 years of Ninth Circuit Court of Appeals and US Supreme Court Rulings.

The 1996 Telecommunication Act (“1996-TCA”) set up cooperative federalism principles: whatever is not claimed as narrow preemption at the federal level, falls to the states and locals to regulate — principles which were upheld in a 2005 US Supreme Court Ruling in Palos Verdes v Abrams.⁸

Clearly, California’s cities and counties are the most knowledgeable about what technology choices (wired or wireless) would be best to close the Digital Divide in their communities.

A one-size-fits all program for a state of nearly 40 million people with vastly different climates, geographies and topographies (compare South Lake Tahoe to San Diego to Modesto) is doomed to fail. California’s Cities and counties, therefore, need to retain their power to set their own policies for the placement, construction and modification of personal wireless service facilities. That is the best way for California’s cities and counties to balance the needs of high tech businesses and the needs of their community to achieve the following:

• to provide sufficient wireless telecommunications service
• to provide sufficient broadband service in the most energy-efficient and cost-efficient (to the end user) manner
• to preserve the quiet enjoyment of streets (and homes)
• to mitigate the significant nuisances caused by constructing sWTFs in the public rights-of-way
• to keep sWTF antennas from being too low to the ground and too close to homes
• to protect against insufficiently-regulated maximum effective radiated power — Note: a certified RF expert measured electromagnetic power through-the-air in a bedroom in Sacramento from a sWTF 60-feet away from the home at 30 million times higher than what is needed for excellent telecommunications service

This excessive electromagnetic power caused two young children sleeping in that bedroom to become sick in a matter of weeks. They were each diagnosed by their physician in 2019 with ICD-10-CM Diagnosis Codes: W90.0XXA: Exposure to Radio-frequency Radiation, initial encounter; W90.0XXD: Exposure to Radio-frequency Radiation, subsequent encounter; W90.0XXS: Exposure to Radio-frequency Radiation, sequela. The family was forced to abandon the use of their front yard and to spend over $15,000 to shield their home. This is happening all over California and other parts of the US. We have evidence of similar problems in Oregon, Washington, Idaho, Arizon, Michigan, Florida, Massachussetts, New York and other states.

The Wireless industry plan for 2021 is to force California to deliberate again on three bills that are almost identical to 2017’s SB.649. Why is the Wireless industry wasting everyone’s time and the taxpayer’s money to attempt this same industry heist of local control all over again?

California’s 2021 Triple Threat 6-7-8 — SB.556, AB.537 & SB.378 is a Power Grab That is Built on a Foundation of Sand

For example, the text of AB.537, as amended on May 27, 2021 says the following:

“regulations contained in Subpart U (commencing with Section 1.6001) of Part 1 of Subchapter A of Chapter I of Title 47 of the Code of Federal Regulations.”

These FCC CFR rules, which originated in FCC Orders 18-30 and 18-133 have significant problems of foundation, as explained by the nation’s top Anti-Cell Tower attorney, Andrew Campanelli, Esq., at 30:29 in this July 23, 2020 video:⁹

Andrew Campanelli, Esq.:

“I don’t think that FCC 18-133 has any effect on a town’s ability [to regulate] because . . .

1. The FCC can’t take away the powers preserved to towns by Congress — it wasn’t intended
2. The FCC can’t wipe out twenty years of Federal judges’ interpretations
3. The FCC can’t strip local governments of 20 years of local zoning regulations

The Wireless industry is going from town to town, showing FCC 18-133 as gospel and the closest thing I have to a decision on this, so far, is one Federal judge in New York said and I’ll quote him:

‘It is not up to the FCC to put words in the Telecommunications Act that aren’t there.’

So, that’s why I think I am right. I know local towns still have the power to control the placement of Wireless Telecommunications Facilities (WTFs). To the extent an applicant says ‘You have to give [this permit] to us because of this [September 2018] interpretive Order’ — I don’t think the Order has any effect on the ability of towns to control the placement of Wireless Facilities at all.”

California’s 2021 Triple Threat 6-7-8 — SB.556, AB.537 & SB.378 is a classic, gold-plated invitation to long-term litigation and liability. This bill would wipe out privacy of nearly every Californian and would significantly degrade public safety, community aesthetics and property values — before the litigation “kicks in””.

Signing AB.537, SB.556 and SB.378 into Law Would Result in Far Too Much Harm

In conclusion, SB.556, AB.537 and SB.378 interfere with a City’s inherent local police power to preserve the quiet enjoyment of streets, the very powers that are needed to deliver actual public safety to its residents.

1. City and counties would be forced to participate in an insurance fraud scheme as no Wireless Carrier or agent can get insurance to cover claims for injury, illness or death from Electromagnetic Fields (EMF) or RF Electromagnetic Microwave Radiation (RF-EMR) exposures on city-owned streets, parks and workplaces, creating complex long-term litigation and liabilities. (See https://scientists4wiredtech.com/thisworks)
2. Those living and owning businesses next to sWTFs will face 20-30% drops in property values of both residential and commercial properties.
3. Aesthetics harms will affect city, private residential and commercial properties
4. Public Safety hazards will be created in public rights-of way, including but not not limited to “noise [of all kinds] and negative health consequences.”
5. The currently coordinated exercise of federal, state and local roles based on the “Police Power” reserved to the States by the U.S. Constitution, and largely delegated to cities by the California State Constitution are working fine right now. AB.537 will scramble this process and force the cities and counties to assume too much liability.

Even if one sympathized with the goals of SB.556, AB.537 and SB.378, the bills would require extensive hearings, amendments and other changes to put it into a manageable form. Any attempt by a state to pass bills that are inconsistent with the US and California Constitutions and inconsistent with federal legislation, including but not limited to the 1996 Telecommunications Act (“1996–TCA”), the National Environmental Policy Act (“NEPA”), the Americans with Disabilities Act (“ADA”) and the Fair Housing Amendments Act (“FHAA”) would have a predictable outcome in the courts.

If you have any questions about any of these points, or the references supporting them, please call me at the number above.

It is hard to imagine a more gold-plated invitation to litigate and a more obvious threat to the public safety, privacy and property values of the cities and the citizens of this state, than California’s 2021 Triple Threat 6-7-8 — SB.556, AB.537 & SB.378.

Sincerely.

/s/
Gary Widman Former General Counsel, Council on Environmental Quality, Executive office of the President; former Associate Solicitor for Conservation and Wildlife, Department of the Interior; Former Chief Counsel, California Department of Parks & Recreation; former Director, Office of Staff Attorneys, U.S. Court of Appeals, Ninth Circuit; former environment law professor and lecturer in northern Calif. UC law schools.

/s/
Paul McGavin Citizen Journalist, Software Engineer and Founder, Scientists for Wired Technology https://scientists4wiredtech.com