Adapted and annotated May 17 opinion piece | Original Berkshire Eagle opinion piece here.
Note: Read Wire America’s rebuttal in the green boxes, below. Any text not in green boxes was written by the Berkshire Eagle editors.
May 17, 2022, Pittsfield, MA — Verizon is hitting back hard against the Pittsfield Board of Health. In a federal lawsuit filed this week, Verizon seeks to block an order issued by the municipal health panel aimed at removing a cell phone tower located at 877 South St.
We repeatedly underscored the specious grounds on which city health officials picked this ill-advised fight with a telecom giant armed with plenty of reasons to push back — logic, legality, regulatory precedent and self-interest among them.
The Board of Health’s declaration that this particular cell tower “directly causes harm” is baseless. Nearby residents’ reported health issues do not in themselves constitute a causal link.
Wire America: That is a decision for expert medical doctors. The residents have seen medical doctors and received diagnoses. Do the Berkshire Eagle editors have any medical expertise? They do not . . . so they are just reporting a baseless opinion — without evidence.
The key word there is “causal,” but even evidence for correlation is mixed.
Wire America: This is a typical industry trick to hide behind some distinction between correlation and causation. The facts are simple. Many residents living on Alma Street exhibit severe symptoms of microwave radiation sickness when living next to the Wireless Telecommunications Facility (WTF) that is polluting their neighborhood with excessive levels of RF microwave radiation. The symptoms abate when the residents are away from the their neighborhood. That is all one needs to know to understand that there is a real problem that can easily be addressed by moving the tower a greater distance from homes (a ½-mile buffer is a good target) — there is even room on the landowner’s lot to achieve that. Verizon is simply too cheap to move the cell tower.
The complaints are concentrated in the Alma Street neighborhood that was pre-opposed to the cell tower on largely procedural grounds, yet curiously there appear to be no complaints from other areas within a similar radius, such as Lori Court residents or those who work at nearby businesses.
Wire America: Any there any facts cited here? What are the distances from the tower to Alma Street and to Lori Court? Are there any obstacles in the way that might block the RF microwave radiation signal to Lori Court? No one could conclude anything from such an unsubstantiated statement by the Berkshire Eagle editors.
When an objective third-party analysis was ordered from an expert consultant, the tower’s radiation emissions were far below the Federal Communications Commission’s regulatory maximum; none of that study’s multiple measurements reached 2 percent of the FCC’s threshold. After health officials touted this taxpayer-funded study as a way to seriously engage with the issue, they cast aside its findings as meaningless when tower opponents found the data too inconvenient.
Wire America: The Board of Health understands that the “Federal Communications Commission’s regulatory maximum” is not protective, so signal strength at “2 percent of the FCC’s threshold” means that this is 2% of an arbitrary, unprotective number (the FCC threshold of 10,000,000 µW/m²). There is a real problem, evidenced by the negative health consequences caused by the RF microwave radiation power levels invading the homes on Alma Street.
Here is some accurate analysis:
- A = 10,000,000 µW/m² x 2% = 200,000 µW/m² = -5 dBM of signal strength (measured on Alma Street)
- B = 0.002 µW/m² = -85 dBm of signal strength (what the industry considers excellent signal strength, because it provides “5-bars” on a cell phone for telecommunications service)
- A is 100,000,000 times higher than B which is one hundred million times higher than needed for telecommunications service)
Apparently, none of this matters to the Board of Health, which is troubling.
Wire America: Not troubling at all. The Board of Health correctly understands that wireless RF microwave radiation is bioactive and is currently being insufficiently regulated. Therefore, each state or locality can regulate the maximum power output of microwave radiation from wireless infrastructure antennas that reaches any areas that are accessible to human beings and other living organisms, consistent with the 11,000+ pages of peer-reviewed, scientific evidence that Environmental Health Trust and Children’s Health Defense and others plaintiffs placed in the FCC’s public record in their in Aug 2021 successful lawsuit: Case 10-25 EHT et al v FCC: Vol-1, Vol-2, Vol-3, Vol-4, Vol-5, Vol-6, Vol-7 Vol-8, Vol-9, Vol-10, Vol-11, Vol-12, Vol-13, Vol-14, Vol-15, Vol-16, Vol-17, Vol-18, Vol-19, Vol-20, Vol-21, Vol-22, Vol-23, Vol-24, Vol-25, Vol-26 and Vol-27.
The DC Circuit judges ruled the following in Case 20-1025 in Aug 2021:
“. . . we grant the petitions in part and remand to the Commission to provide a reasoned explanation for its determination that its guidelines adequately protect against harmful effects of exposure to radio-frequency [microwave] radiation. It must, in particular,
- (i) provide a reasoned explanation for its decision to retain its testing procedures for determining whether cell phones and other portable electronic devices comply with its guidelines,
- (ii) address the impacts of RF radiation on children, the health implications of long-term exposure to RF radiation, the ubiquity of wireless devices, and other technological developments that have occurred since the Commission last updated its guidelines, and
- (iii) address the impacts of RF radiation on the environment.”
We sincerely hope, however, that it matters to the City Council, which faces the decision of whether to fund the Board of Health’s misguided mission to its predictable and costly end.
Wire America: How much water will the Berkshire Eagle editors carry to support one of their largest source of advertising revenue, the Wireless industry?
- Misguided? It is premature to label any effort to correct a problem as “misguided”, particularly a problem that is supported by such strong evidence (read here: https://wireamerica.org/ma/pittsfield/board-of-health-order/).
- Predictable? Last we checked, few can accurately predict the future.
- Costly? The City of Pittsfield has insurance to cover the cost to defend the Board of Health’s order. The only costs might be the deductible.
As such, we have some questions for councilors before they decide whether to push tens of thousands of dollars from the city’s coffers into a mission with few upsides but many deep downsides for Pittsfield.
Wire America: We highly doubt that the deductible on the city’s lawsuit defense insurance is “tens of thousands of dollars” . . . this is another baseless statement made by the Berkshire Eagle editors.
The Board of Health’s request for legal funding is $84,000. This was a lowball estimate even based on the board’s assumption that this would play out in the Massachusetts Trial Court system. Verizon, however, filed its suit in federal district court — which means that initial request is no longer conservative but completely unrealistic. Are you willing to greenlight not just that five-figure sum but far more heading from city coffers out the window to fund this frivolous uphill battle?
Wire America: “This is simply the Berkshire Eagle editors peddling baseless fear porn. The city’s lawsuit defense insurance covers actions in state court or federal court. The deductible amount is the same.
In its suit, Verizon is asking a federal court to decide whether the Board of Health’s cease-and-desist order against the tower violated the Telecommunications Act of 1996. That law’s preemption clause states that no municipal entity may regulate location or modification of cell towers “on the basis of the
purported environmental effects of radio frequency emissions”
Wire America: Not exactly right. The word “purported” does not appear in the Telecommunications Act of 1996. Here is what the law actually says in Title 47 U.S. Code §332(c)(7):
(A) General authority. — Except as provided in this paragraph, nothing in this Act 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.
(B) Limitations. —
. . .
(iv) No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission’s regulations concerning such emissions.
What the Berkshire Eagle editors left out was that the regulation of the operations of personal wireless service facilities is under the jurisdiction of the City of Pittsfield because “operations” is not listed as a limitation in Title 47 U.S. Code §332(c)(7)(B).
. . . so long as the structure meets FCC radiation standards, which the aforementioned third-party study pursued by the Board of Health clearly demonstrated.
Wire America: The Berkshire Eagle editors got it wrong again and are misleading the people of Pittsfield. Meeting the FCC RF microwave radiation limits only applies to decisions about the placement, construction and modification of personal wireless service facilities. The FCC RF microwave radiation limits DO NOT apply to decisions about the operations of personal wireless service facilities. The Board of Health has every right to cut the power to any personal wireless service facility that is resulting in negative health consequences for the City’s residents.
Do you have any reason to doubt that this federal law applies here or that a judge would agree with Verizon?
Wire America: Yes, there is a great chance this lawsuit by Verizon will not go their way. The evidence is very clear. Read it for yourself here: https://wireamerica.org/ma/pittsfield/board-of-health-order/
Even if the Board of Health is successful in getting Verizon to shut down and/or relocate the tower, that could entail further costs for the city.
If that means taking that parcel back from Verizon after it was already permitted to site a cell tower, then such a taking could see the company turn around and ask Pittsfield to compensate not just the cost of construction but unrealized future earnings from its operation. Do you want the city to be on the hook for such a risk and its potentially massive price tag?
Wire America: What kind of fear porn is this? Any “potentially massive price tag” would be covered by City’s insurance. The City would NOT be on the hook for these costs. This statement by the Berkshire Eagles editors is misleading.
Read the filing itself here: https://ehtrust.org/wp-content/uploads/Verizon-Cell-Tower-Order-Complaint-and-Exhibits-1-22-cv-10718-5-10-22.pdf
The Board of Health’s grandstanding has legitimized the heckler’s veto for a handful of residents who didn’t want a cell tower near their property. That does not bode well for the city’s future when other controversial infrastructure projects inevitably crop up. Backing and funding this legal fight wouldn’t be just one imprudent expenditure, but the tacit approval of municipal boards pursuing questionable agendas on behalf of a vocal minority of residents while laying the outsize costs and risks on the entire city. As the city’s top municipal panel, do you really want to set this precedent?
Wire America: There is a well-known saying:
“When you have the law, you pound the law. When you have the facts, you pound the facts. When you have neither the law nor the facts, you pound the table.”
These pejorative words from the Berkshire Eagle’s editors are the equivalent of pounding the table.
- vocal minority
- outsize costs and risks
Why lie like this? There is insurance to cover the defense costs. The Board of Health has the facts, the law and the insurance coverage to proceed and use its authority to protect the residents of Pittsfield.
In order to do their due diligence on the Board of Health’s request before them, city councilors must grapple with these questions.
For the best interests of their constituents and their city, there is only one reasonable answer to the above questions: no.
Wire America: Nice try, but the Berkshire Eagle’s editors’ obvious efforts to carry the water for one of their largest advertisers is another example of how our media is “bought and sold” in 2022. The correct answers to the questions are in the green boxes on this page. Using the insurance defense money to enforce the City’s protection of Pittsfield residents is the right thing to do.
It is not a wise expenditure to escalate a fight with Verizon, as the Board of Health was not on steady ground while picking it.
Wire America: Don’t pay attention to that false conclusion. The Board of Health is on very solid ground, which you can read for yourself here: https://wireamerica.org/ma/pittsfield/board-of-health-order/
It is not worth the precarious position in which Pittsfield is placed, and it is not a precedent the City Council should be keen to legitimate. By pressing an assertion for which it clearly did not have the authority, the Board of Health has put Pittsfield in a tight spot: publicly capitulate now, or engage in expensive litigation that would likely produce the same results.
Wire America: Folks, I hope that you can see that the Berkshire Eagle editors are just rattling sabres for the wireless industry here; they are part of a protection racket and willing to abuse their bully pulpit to line their own pockets at the expense of Pittsfield residents. The Berkshire Eagle editors have not mentioned once that the City has insurance for this. Why was that fact omitted? I think you can answer that for yourself.
We urge councilors to show some backbone and prudence where their fellow officials on the Board of Health did not, and move to dial down this legal conflict before it spins out of their control entirely.
Wire America: I wouldn’t pick the Berkshire Eagle editors to be in any fight of mine. They would wave the white flag at the very first blow. Since they have demonstrated in this opinion piece a lack of facts, understanding and backbone, they are not qualified to give any advice to any City Council member. Please ignore this puff piece and learn from the facts cited in the green boxes, above.