Wire California

Gary Widman, Esq.

28 Marinero Circle #31, Tiburon, California 94920
Telephone: 415-435-0360 | Email:

July 2, 2021

Mr. Colin Grinnell, Staff Director
Mr. Anton Favorini-Csorba, Consultant
Senate Governance and Finance Committee
State Capitol, Room 408
Sacramento, CA 95814
(916) 651-4119

Dear Mr. Grinnell and Mr. Favorini-Csorba,

A vote for Assembly Bill 537 (Quirk) will likely create nothing but significant harms, unfunded liabilities due to lack of adequate insurance, unrest and legal controversy.

While AB.537 provides for a slightly 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. The bill would create significant harms to public safety, privacy and property values. Most importantly, AB.537 has no real power to close the Digital Divide, as claimed.

Californias cities, counties and residents do not want their local rules set aside to further enrich multi-billion dollar Telecoms at their expense. They wish to retain all of their rights given to them by the 1996 Telecommunication Act (“1996-TCA”) and its cooperative federalism1 principles: whatever is not claimed as narrow preemption at the federal level, falls to the states and locals to regulate. Clearly, cities and counties are the most knowledgeable of 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 that the cities and counties can balance the needs of high tech businesses and the needs of their community to achieve the following:

  • to provide sufficient telecommunications service
  • 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 — a certified RF expert measured electromagnetic power through-the-air in a bedroom in Sacramento2 from a sWTF that is 60 feet away at 30 million times higher than what is needed for excellent telecommunications service.

This excessive electromagnetic power caused two young children sleeping in that Sacramento 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.3 The family was forced to abandon the use of their front yard and to spend over $15,000 to shield their home.

In 2017, the Wireless industry attempted to pass a very similarly friendly to Big Wireless bill, SB.649, which faced stiff resistance from the League of CA Cities, over 300 California cities, and hundreds of citizen organizations. But even that bill didn’t add a “deemed approved” remedy — as AB.537 does. Such a “Deemed approved” remedy cuts off nearly all case-by-case adjudication, as intended by FCC 18-133, the presumptive sWTF Streamline Deployment Order.

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].”

The Wireless industry plan for 2021 is to force California to deliberate again on an almost identical bill, but split the desired provisions across three separate bills: CA’s 2021 “Demolish Local Control” Telecom bills: AB.537, SB.556 and SB.378. 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?4

AB.537 is a Power Grab That is Built on a Foundation of Sand

The text of AB.537, amended on July 1, 2021 states:

“§ 65964.1(e) As used in this section, ‘Applicable FCC rules’ means those 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 rules, which originated in FCC Orders 18-30 and 18-133 have significant problems of foundation, as explained in the subsequent pages. Please read carefully the words of the nation’s top Anti-Cell Tower attorney, Andrew Campanelli, Esq., from this video:5

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.”

AB.537 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”.

The 2019 CA Supreme Court Ruling in T-Mobile v San Francisco6 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.”

In conclusion, AB.537, SB.556 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.

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

  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
  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 bill’s goals, the bill 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.

These problems are examined in more depth in the subsequent pages. 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 AB.537.


/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, Wire California

Appendix A: Deemed-Approved Remedies Are NOT Consistent with Federal Telecom Statutes or FCC Orders

AB.537 violates the 1996 Telecommunications Act and is inconsistent with various U.S. Court of Appeals Rulings in the 9th Circuit and an important CA Supreme Court Ruling from 2019:

2021’s AB.537 attempts to replace 2015’s CA AB.57 and then attempts to tie CA State law to the current — and future — orders from a fully-captured Federal agency: the Federal Communications Commission (FCC). The FCC is staffed with members of the American Legislative Exchange Counsel (ALEC), and is a revolving door for people moving to and from the FCC and the Wireless Carriers and Wireless Industry Trade associations. The current FCC “60-day shot clock” order for so-called “small” Wireless Telecommunications Facilities (sWTFs), FCC 18-133, lacks foundation and is subject to case-by-case adjudication, as admitted by FCC Attorney Scott Noveck in US Court of Appeals, 9th Circuit:

From Feb 10, 2020 Oral Argument by FCC Attorney Scott Noveck

“These Orders [FCC 18-111 and FCC 18-133] are not self-enforcing. The contemplate the need in many circumstances for further case-by-case adjudication and in those instances either someone would have to come back to the Commission or go into court.”

AB.537 is attempting a Wireless Industry end-run around the established framework of “cooperative federalism” (a balancing of the needs of local communities and Wireless carriers) which was recognized as the legislative intent of the 1996-TCA by the US Supreme Court in their 2005 Ruling in Palos Verdes v Abrams:

“Congress initially considered a single national solution, namely a Federal Communications Commission wireless tower siting policy that would preempt state and local authority. Ibid.; see also H. R. Conf. Rep. No. 104-458, p. 207 (1996). But Congress ultimately rejected the national approach and substituted a system based on cooperative federalism. Id., at 207-208.”

The 1996-TCA Conference Report includes plain language that explains that the 1996-TCA only provides limited preemption of local authority for personal wireless services (wireless phone calls).

Appendix B: AB.537 Would Unnecessarily Demolish Local Control over Wireless Infrastructure

Please do not unwittingly rubber-stamp such a demolition of local control by voting for AB.537, a draconian and unnecessary deemed-approved power grab — which attempts to codify the current (and future, yet to be defined) “presumptive” FCC shot clocks as CA State law.

This affects not just co-locations but also the construction of new Wireless Telecommunications Facilities (WTFs) of any size or any “G”. This bill is so ambiguous that it even self-contradicts, making the language of the bill even internally inconsistent. We are surprised that such a fatally-flawed bill has made it past CA State Legislative Counsel.

The following statements from Assemblymember Bill Quirk,the sponsor of AB.537 are false. He can make no claims of safety because he is not a medical professional. We already have medical professionals in Sacramento diagnosing children with microwave radiation sickness from RF Electromagnetic Microwave Radiation (RF-EMR) exposures — at Signal Strength power that is 30 million times higher than needed for telecommunications service — from a Verizon so-called “small” Wireless Telecommunications Facility (sWTF) installed 60 feet from a Sacramento home.

In addition, there are no Federally-mandated shot clocks for Wireless Telecommunications Facilities (WTFs) because the FCC rules from 2009, 2014 and 2018 only state FCC preferences and presumptions. These FCC Orders are not federal law or federal mandates, they are merely guidance from the FCC and set up only presumptive shot clocks — without any deemed-approved remedies.

Finally, the foundation for the proposed 60-day shot clocks for sWTFs was erased by the FCC actions mandated by the DC Circuit Court of Appeals Ruling in Case No. 18-1129, Keetoowah v FCC which is described here:

The FCC took actions, based on that court mandate, as described by Ms. Garnet Hanly, Division Chief of the Competition & Infrastructure Policy Division, FCC Wireless Telecommunications Bureau on Oct 19, 2020:

“The FCC when it modified its rules [Title 47, C.F.R. § 1.1312(e) by its October 2019 Order that became effective on Dec 5, 2019], after the DC Circuit issued its mandate [in its Ruling of Case No. 18-1129 Keetoowah v FCC] we [the FCC] took the position that we were reviewing Small Wireless Facilities as [Federal] undertakings and major Federal actions, pursuant to the DC Circuit decision and that is what we’ve been doing.”

Asm. Quirk Comment in April 13, 2021 Assembly Committee on Local Government Hearing re AB.537:

“With updated Federal rules, AB.537 ensures that local governments make decisions within the federally-mandated timelines . . . we do not intend to change the federal guidelines and the purpose of this bill is to have a remedy if governments don’t meet those guidelines, so I guarantee you that this bill will not emperil safety. Thank you. “

Asm. Quirk in all AB.537 Assembly Committee Analyses:

” AB 537 will align California law with federal law to ensure that local jurisdictions approve of these projects within reasonable periods of time** and utilize permitting best practices.”

  • 2021-0413-AB537-Assembly-Local-Government-Analysis
  • 2021-0428-AB537-Assembly-Communications-and-Conveyance-Analysis
  • 2021-0519-AB537-Assembly-Appropriations-Analysis
  • 2021-0521-AB537-Assembly-Floor-Analysis
  • 2021-0527-AB537-Assembly-Floor-Analysis

From AB.537 Analysis by Angela Mapp

“The FCC adopted a new remedy whereby inaction within the shot clock time frames constitutes a “presumptive prohibition” on the provision of wireless services pursuant to federal law. The FCC considered this remedy sufficient, as an applicant would ‘have a straightforward case for obtaining expedited relief in court.'”

The federal judges in the US Courts of Appeals are very clear on this point:

Ruling on Ninth Circuit Case 18-72689, City of Portland et al v FCC re: FCC Order 18-133

“the FCC concluded that under its new shot clock rules, which shorten the time frames and expand the applicability of the rules, there will be no similar bar to wireless deployment. Because the FCC reasonably explained it has taken measures to reduce delays that would otherwise have occurred under its old regime, the factual findings here do not compel the adoption of a deemed granted remedy.”

Presumptive defined:

“based on a legal inference as to the existence or truth of a fact not certainly known that is drawn from the known or proved existence of some other fact

From 1996, in the 1996-TCA Conference Report:

“the time period for rendering a decision will be the usual period under such circumstances. It is not the intent of this provision to give preferential treatment to the personal wireless service industry in the processing of requests, or to subject their requests to any but the generally applicable time frames for zoning decision.

From 2013 , in the US Supreme Court Ruling in Arlington v FCC:

In November 2009, the [FCC], relying on its broad statutory authority to implement the provisions of the Communications Act, issued a declaratory ruling responding to CTIA’s petition. In the Declaratory Ruling, 24 FCC Rcd. 13994, 14001 . . . A “reasonable period of time” under §332(c)(7)(B)(ii), the Commission determined, is presumptively (but rebuttably) 90 days to process a collocation application (that is, an application to place a new antenna on an existing tower) and 150 days to process all other applications. Id., at 14005.

From the August 1, 2020 Ninth Circuit Court of Appeals Ruling on FCC Order 18-133, which proposed 60-day shot clocks: the Ninth Circuit judges wrote in the Case No. 18-72689 Ruling, City of Portland et al. v FCC:

“It must be remembered that the ‘shot clock requirements create only presumptions’. As under the 2009 Order, if permit applicants seek an injunction to force a faster decision, local officials can show that additional time is necessary under the circumstances.”

Appendix C: Make AB.537 a Two-Year Bill in the CA 2021-2022 Legislative Session

AB.537 requires another Quality Assurance (QA) step to clean up this language before an Assembly floor vote. Given current 2021 Legislative deadlines, this would make AB.537 a two-year bill to be first corrected and then considered in Jan 2020. That is a reasonable next step for such a bill that is essentially void ab initio in its current form and, therefore, could be subject to immediate legal challenge by any California city or county.

Firefighters received an exemption in AB 537 based upon the science showing negative health consequences from excessive radiated power from Wireless Telecommunications Facilities (WTFs) placed on the facilities where the firefighers lived and worked. Californians’ children, pregnant women, elderly and those with compromised immune systems, and with implanted medical devices deserve similar protection.

In previous legislation, 2015’s CA AB.57, California legislators recognized the need to protect the health of public safety for firefighters, but not for the residents of communities. Every firefighter tested had measurable brain abnormalities from exposure to excessive radiated power from WTFs.

Note: AB 537 has the identical exemption as AB.57. This part of the bill admits that the wireless transmitters located in close proximity to people are dangerous.

2021 AB 57: Sec 1. (f)

“Due to the unique duties and infrastructure requirements for the swift and effective deployment of firefighters, this section does not apply to a collocation or siting application for a wireless telecommunications facility where the project is proposed for placement on fire department facilities.”

2021 AB 537: Sec 2. (h)

“Due to the unique duties and infrastructure requirements for the swift and effective deployment of firefighters, this section does not apply to a collocation or siting application for a wireless telecommunications facility where the project is proposed for placement on fire department facilities.”

This web page is one of three legs of the stool that establishes local control over the operations of Wireless Telecommunications Facilities (WTFs); the other two are the US House/Senate Conference Report for the 1996 Telecommunications Act (“1996-Act”) and the stated purpose of the 1996-Act: to promote the safety of life and property.

Appendix D. Wireline Broadband and Wireless Broadband are NOT Functionally Equivalent Services

Wireline Broadband is far superior to Wireless Broadband as one can see in the following table.

Wireline FTTP Broadband Wireless Broadband
Data Medium Wireline glass fiber Wireless through the air
Spectrum Visible Light Microwave
Frequencies Terrahertz Megahertz
Frequency Ranges 405,000,000,000,000 Hz to 790,000,000,000,000 Hz 600,000,000 Hz to 86,000,000,000 Hz
Frequency Ranges 405 × 1012 Hz to 790 × 1012 Hz 600 × 106 Hz to 86,000 × 106 Hz
Wireless Interference None Ubiquitous
Data capacity Huge Limited
Download speed 1,000 Mbsp down 25-100 Mbsp down
Upload speed 1,000 Mbsp up 5-10 Mbsp up
Latency 1-5 milli-seconds 10-50 milli-seconds
Energy-efficiency Extremely efficient Extremely inefficient
More Frequent Installation Underground On poles
Less Frequent Installation On poles Underground
Ease of date capture Difficult Easy
Security Much more secure Much less secure
National Security More reliable Much less reliable
Electromagnetic Pulse Attack Survives Does not survive
Fire: Natural or Attack Survives Underground Does not survive
Health Effects None Many Proven*
Biological Effects None Many Proven*
Environmental Effects None Many Proven*
Impacts in/from PROW None Significant**

* Link to tens of thousand of peer-reviewed studies — established science that proves Negative Health, Biological and Environmental Impacts of RF microwave radiation exposures

**Link to safety, privacy and property value harms from Wireless Telecommunications Facilities (WTFs) installed near homes

So why are the 2021 CA Broadband bills allegedly technology neutral, but point to wireless broadband as the preferred solution? The opposite is true.

Appendix E. Wireless Broadband is No Longer Regulated by the FCC

Broadband regulation in the US has been a ping pong match for the last 25 years, based, in part, on these federal definitions:

The more complete answer is that the 1996-TCA set up a system of cooperative federalism, that rests on Title 47 U.S.C. § 332 . . .

Title 47 U.S.C. § 332

(7) Preservation of local zoning authority

(A)General authority

Except as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.


(i)The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof . . .

. . . and rests on the 2005 US Supreme Court Ruling in Palos Verdes v Abrams:

​Justice Breyer, with whom Justice O’Connor, Justice Souter and Justice Ginsburg join, concurring.

“Context here, for example, makes clear that Congress saw a national problem, namely an “inconsistent and, at times, conflicting patchwork” of state and local siting requirements, which threatened “the deployment” of a national wireless communication system. H. R. Rep. No. 104-204, pt. 1, p. 94 (1995).

Congress initially considered a single national solution, namely a Federal Communications Commission wireless tower siting policy that would preempt state and local authority. Ibid.; see also H. R. Conf. Rep. No. 104-458, p. 207 (1996). But Congress ultimately rejected the national approach and substituted a system based on cooperative federalism. Id., at 207-208..

State and local authorities would remain free to make siting decisions They would do so, however, subject to minimum federal standards.”

This 2005 US Supreme Court Ruling elevates the 1996-TCA Conference Report to the status of federal law, as a definitive source of legislative intent of the 1996-TCA. That is critically important to the voide ab initio status of AB.537 because the 1996-TCA conference is evidence that proves that both CA AB.57 (from 2015) and its proposed replacement AB.537 (from 2021) are not consistent with the legislative intent of the 1996-TCA:

H. R. Rep. No. 104-204

“The conference agreement creates a new section 704 which prevents Commission preemption of local and State land use decisions and preserves the authority of State and local governments over zoning and land use matters . . . When utilizing the term ‘functionally equivalent services’ the conferees are referring only to personal wireless services as defined in this section that directly compete against one another . . . will provide localities with the flexibility to treat facilities that create different visual, aesthetic, or safety concerns differently . . . For example, the conferees do not intend that if a State or local government grants a permit in a commercial district, it must also grant a permit for a competitor’s 50-foot tower in a residential district.”

Finally, it has already been ruled in least two federal courts that:

  • United States District Courts sitting in New York are bound to follow the States Court of Appeals’ interpretation of the “effective prohibition” language of the 1996-TCA, and not the FCC’s attempt to reinterpret the very same language within the 1996-TCA ; and
  • just because Congress has not updated the 1996-TCA to keep up with changing technology, it is not up to the FCC to construe the 1996-TCA to say something it does not say.”

The same thing applies in the U.S. Court of Appeals for the Ninth Circuit, which has ruled that a locality could violate the 1996-TCA’s effective prohibition clause if it prevented a wireless provider from closing a “significant gap” in service coverage.

Such a claim generally “involves a two-pronged analysis (1) the showing of a ‘significant gap’ in service coverage and (2) some inquiry into the feasibility of alternative facilities or site locations.”

The “effective prohibition” clause in the 1996-TCA is not affected by the FCC Orders from 2018.