Law/Legal:
AHA is Appealing Fed Court Ruling

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Posted:
25 March 2000

---------- Forwarded message ----------
Date: Sat, 25 Mar 2000 13:37:49 -0600 (CST)
From: "Roy L. Beavers" <rbeavers@llion.org>
To: emfguru <rbeavers@llion.org>
Subject: AHA press release, Appealing Fed Court ruling (Kelley)..

........This could become an important case.....  Like all court processes, though, it could be slow and inadequate in its final outcome.....

The AHA appealers ought to have a strong case on the violation of the 10th Amendment of the U.S. Constitution that occurred in the 1996 Telecom Act, however.....  And their appeal - which also raises the public "health" issue - could get stronger as events now transpiring "outside" the U.S. continue to progress......

The "health" issue may boil down to the court's willingness to "consider" the latest science information ... rather than confining its decision to what was presented in the lower court.....

This bespeaks the problem of a society/government that avoids its EXECUTIVE and LEGISLATIVE responsibilities (to protect the public from harmful materials) ... and leaves the process entirely to the courts....

(Sometimes, however, courts, too, are human and are aware of the fact that they have been forwarded a case with evidence that is out of date due to subsequent developments.....)

There is mention below of the "reasoned debates that are taking place" on this (EMF) issue....???

That is not what is happening at all.....!!!  What is happening is that the Washington $$$$$$ oligarchy $$$$$$ under the control of special "vested" interests has succeeded in quashing virtually all public awareness of this problem ... which affects literally tens of millions of Americans..... The public debate that SHOULD be taking place ... is totally absent......!!!

Cheerio.....

Roy Beavers (EMFguru)
roy@emfguru.com

It is better to light a single candle than to curse the darkness

People are more important than profits!!


Libby Kelley has forwarded the following........

Ad Hoc Association
Of Parties Concerned about the
Federal Communications Commission Health & Safety Rules

P.O. Box 7577, Olympia Washington 98507-7577
Phone   415-891-1863    Fax  415-892-3108  Website
http://www.ccwti.org
 

For Immediate Release
Contact:  Libby Kelley
AHA, Executive Director
415 892-1863
 

Federal Court ignores citizen call for radiation protection from wireless communications technologies

On February 18, the U.S. Court of Appeals, 2nd Circuit, rendered a long awaited decision on a major citizen-led court challenge to the Federal Communication Commission rules (under Docket Nos. 97-4328(L); 98-4003(Con); 98-4005(Con); 98-4025(Con); 98-4122(Con).  The court affirmed the FCC rulings on all counts in this decision, which was released after a ten-month hiatus following oral arguments.  Meanwhile, the wireless telecommunications facilities rollout continues surging through communities throughout the United States.

Three separate groups, The Ad Hoc Association of Parties Concerned about FCC Radiofrequency Radiation Health and Safety Rules (AHA), the Communication Workers of America (CWA) national organization and, the Cellular Phone Taskforce, representing numerous grassroots groups, telecommunications workers, and persons suffering from environmental illness, filed for federal review of FCC rulemakings in October, 1997, following final publication of FCC rules to promulgate guidelines for health and safety standards of radio frequency radiation, streamline procedures to meet National Environmental Policy Act requirements for FCC licensees, retaining FCCs exclusive ability to regulate wireless facility operations.

The major legal issues raised in the appeal were: 1) The Guidelines for Evaluating the Environmental Effects of RadioFrequency Radiation, 11 F.C.C Rcd. 15123 (1996), and, 2) procedures for Reviewing Requests for Relief from State and Local Regulations Pursuant to Section 332(c)(7)(B)(v) of the Communications Act of 1934, 12 F.C.C. Rcd 13494 (1997).  The lead attorney in the consolidated appeal was James R. Hobson, Esq., of Donelan, Cleary, Wood and Maser, P.C., Washington D.C. Filing an amicus brief in support of the petitioners on behalf of citizens in New England was the law firm of Seymour and Landy in New York.

The FCC was supported by intervenor briefs filed by major U.S. telecommunications and broadcast corporations including, the Cellular Telephone Industry Association, the National Association of Broadcasters, ATT Wireless Corporation, the Electromagnetic Energy Association and, the Association of Maximum Service Television.

The citizens who brought this case have vowed to take it forward on a ppeal.  The law offices of Whitney North Seymour, Jr., Seymour and Landy, has offered to assume pro bono legal representation for AHA on an appeal to the U.S. Supreme Court.  The legal challenge will focus on constitutional issues under the 10th Amendment, at a minimum.  Mr. Seymour served as an U.S. Attorney and is the founder of the National Resources Defense Council.  The Seymour and Landy law practice specializes in Health Care, Administrative and Constitutional Law.  Mr. James R. Hobson, Esq, who served as lead attorney for the appellate court appeal will be retained as a consultant for the coming appeal.

The petitioners claimed in lengthy arguments, supported by numerous affidavits, that FCC Guidelines violated the Americans with Disabilities Act and the Rehabilitation Act; that FCC was arbitrary and capricious in enacting the Guidelines in violation of the Administrative Procedures Act (APA), specifically 5 U.S.C. 706(2)(A); that FCC violated the National Environmental Policy Act (NEPA) by failing to conduct an environmental impact statement; 4) that FCC exceeded its powers when it prohibited state and local governments from regulating the operation of personal wireless service facilities according to the FCCs radiofrequency guidelines; and, by preempting state and local powers to consider health and environment in making wireless telecommunications decisions, the Federal Telecommunications Act of 1996 (47 U.S.C. 332(c)(7)(B)(iv), is unconstitutional.

According to David Fichtenberg, AHA President, We believe the Court has ignored strong factual evidence which shows that FCC unlawfully failed to assure public health protection in adopting the current radiofrequency human exposure guidelines.  Further, we believe it is unlawful to preempt local government ability to protect public health from potentially hazardous exposure to low intensity radiation.  We call for a public policy solution to the serious imbalance that exists in the U.S., which allows for industry control over the scientific research agenda, the RF radiation exposure standard-setting process, with little regulatory control over what is emerging as a major new public utility.

The AHA suit contends that there are several major flaws in the FCC rules that are placing peoples lives and their health at stake.  One clear example is a family in Manhattan who was forced to flee their condominium and sell it at loss after realizing they were being heated up in their beds at night. The FCC investigated and found there was a transmitting antenna on adjoining rooftop less than thirty feet away. This family was not able to resolve their concerns, after repeated attempts, by going to the FCC.  Radiation meters cost money and there is little way for citizens to be competent enforcers without spending a lot of money on equipment.   Rooftop antennas and towers over 34 feet in height may be sited without taking into account proximity to nearby buildings or hillsides.  Due to Section 704 of the Federal Telecommunications Act, state and local governments are not allowed to deny a site based on health concerns.  Although the exposure conditions may be within legal limits, the growing body of anecdotal information is a call for serious examination as many people are reporting adverse health effects that they attribute to nearby antennas and towers.

The U.S. RF exposure guidelines set the threshold for unsafe exposure at thermal level radiation and are among the highest standards in the world. The reason for this is well understood to be the result of a well-financed and orchestrated lobbying effort on behalf of the communications corporations and to preserve military interests at home and abroad. Other countries have applied much lower standards, including Switzerland, Russia, Italy and China.   Austria is the first country to set standards to ensure the radiation environment, or electrosmog, meets a certain lowered threshold.  The City of Toronto, Canada has proposed that wireless carriers voluntarily meet lower emissions standards.  The United Kingdom will publish a major report in April that is expected to reduce mobile base station mast siting near residences and schools.

Presently, Senator Leahy (D-Vt.), Senator Jeffords (R-Vt.) and Cong ressman Saunders (D-Vt.) are proposing to include funds to conduct radiofrequency research in the FY 2001 Health and Human Services appropriations language.  The National Institute of Health would be allocated up to $50 million over 5 years on the first-ever evaluation of RF ambient radiation bioeffects.  In addition, the Vermont Congressional delegation has two bills under consideration Congress, S. 1538 and H.R. 2834.  In California, Senator Tom Hayden just introduced a consumer oriented cell phone bill (SB 1699), that would require the state health agency to do an RF bibliographic review, to require state-licensed retailers to post warning signs at sales locations and to advise customers to purchase and use hands-free protection devices.

The decision to appeal to the Supreme Court is encouraging to the millions of Americans who are seeking relief from the onslaught of transmitting antennas and towers.  Citizens are hard-pressed to know what to do to effectively oppose a cell tower proposal.  They often become embattled with their neighbors and local government in an effort to protect homes, childrens playgrounds and church steeples from becoming a preferred site for wireless transmitters.  Cheryl Ciccone, a Haversford, Pennsylvania, mother of two, speaks for many when she writes,  "I may create some enemies in my church and daycare, but as you know, a mother would lay down her life for her child."

Jan Newton, Executive Officer for the EMF Network in Vermont and one of over fifty individuals who signed onto the AHA initial appeal, calls for Federal intervention in order to protect people from harm.  She states: We hope the reasoned debates taking place as wireless technologies unfold will lead to more protective public health, environmental and consumer safety protections for all. Technology always brings unintended consequences and technological development is never neutral.   Government must be more proactive in setting public health-based policy for safe RF exposure limits.



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