Priest River Letter, March 1, 2022

To: Mayor Kevin Wylie

March 1, 2022

To City Council members:
Candy Turner
Doug Wagner
Billy Mullaley
Ann Yount

cc:
Priest River City Attorney Katie Elsaesser

Re: Control #2021-12-01 – Mullaley – Request for Amendment of Wireless Communications Facilities Code

SENT BY: Certified mail, hand delivery, and email

Dear Ms. Elsaesser, Mayor Wylie, and Priest River City, Council members: Candy Turner, Doug Wagner, Billy Mullaley, and Ann Yount:

This letter requests that the City of Priest River restart a process to update its Wireless Ordinance — a process that was tabled over the last 18 months as Mayor Martin’s term ended and Mayor Wylie’s term began. We recognize that the COVID-19 shutdowns have been convenient reasons for not doing many things, but those reasons have now ended. We wish to re-engage during Mayor Wylie’s term to complete the work we started nearly two years ago.

The problem is that the current Priest River Wireless ordinance is insufficient to preserve Priest River’s quiet enjoyment of streets and will not protect its residents’ rights to “enjoy and defend life and liberty. . . protect property . . . and secure safety.” — as guaranteed by the Idaho State Constitution.

Idaho State Constitution: ARTICLE I – DECLARATION OF RIGHTS

SECTION 1. INALIENABLE RIGHTS OF MAN. All men are by nature free and equal, and have certain inalienable rights, among which are enjoying and defending life and liberty; acquiring, possessing and protecting property; pursuing happiness and securing safety.

SECTION 2. POLITICAL POWER INHERENT IN THE PEOPLE. All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform or abolish the same whenever they may deem it necessary; and no special privileges or immunities shall ever be granted that may not be altered, revoked, or repealed by the legislature.

The City of Priest River has the duty to protect its residents from the unnecessary, home invasion being attempted by the Wireless industry to place far too much electromagnetic power through the air (RF microwave radiation) into our homes in violation of federal, state and local laws. Over 50 Priest River residents are united in their support of updating the wireless ordinance.

We were disappointed to hear the statements made by City Attorney Katie Elsaesser in the February 22, 2022 Priest River City Council meeting:

“place Elsaesser comment here_xxx”

Ms. Elsaesser had also written me on November 17, 2020, on behalf of Mayor Martin, responding to the submission of a proposed telecommunications ordinance update for consideration at their September, 2020, Admin Committee meeting. At that meeting, I was scheduled to present power point slides, but was not allowed to do so. In the Nov 17 follow up letter, Elsaesser communicated the following:

“I have reviewed the information provided and the relevant caselaw. I have advised the City of Priest River of my legal opinion regarding your proposed modification of the City’s current regulation as it relates to Wireless Communication Facilities. At this point in time the City of Priest River has elected not to proceed with modifying the City Code as it relates to Wireless Communication Facilities. As any new Wireless Communication Facility will require a conditional use permit, review of any proposed installation can be addressed at the time a conditional use permit is sought.”

Elsaesser’s oral and written comments are very similar to Mayor Martin’s October 29, 2020 written statements:

“The recent Federal Court case that was decided in August 2020 is also important. Dozens of cities from Portland to Chicago sued the FCC over their 2018 ruling. The 9th Circuit Court ruled against the Cities. The 2018 Ruling by the FCC ruled excessive fees illegitimate, prohibited utility companies from discriminatorily denying or delaying 5G and broadband service providers access to poles, limits City review of applications to 60-90 days and excludes small cell sites from environmental and historical character impact reviews. With this ruling, I fear that municipal regulation of the small cell sites are going to be very difficult and problematic.” He then added, “I would be happy to meet with you to discuss my decision.”

The problem is that the statements by Elsaesser and Martin, above, are simply inaccurate and far too general to adequately address the problem. Instead of listening to Wireless industry rhetoric, our elected representatives and city/county staffs should only rely on actual quotes from the [US Court of Appeals judges making the rulings_xxx] and consider the context of the quotes. We do that below.

Additionally we must focus on the jurisdiction of each party under the current regulatory scheme for Wireless Telecommunications Facilities (WTFs) of any size or any “G”. That scheme is “cooperative federalism“, as explained by the US Supreme Court in 2005 here –> https://wireamerica.org/compare/.

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

“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. Ibid., at 207-208.

State and local authorities would remain free to make siting decisions. They would do so, however, subject to minimum federal standards [just “placement, construction and modification of personal wireless facilities”] — both substantive and procedural — as well as federal judicial review.”

Once [one_xxx] understands that even our attorney [many, including city staff have_xxx] been misled [by hearsay, magazine articles and other non-substantive evidence_xxx], [one_xxx] can better discern the truth, which is very different from what we’ve been incessantly told by the Wireless industry. This is what I have been communicating for several years. It is now time to dig [in_xxx] and make the effort to fully understand these laws and court rulings, discussed below.

After receiving the Nov 2020 email from Mayor Martin, I stated my desire to meet Martin via Zoom, along with our advisor, Paul McGavin, the founder of Wire America (https://wireamerica.org/) an organization with a web site that provides expert analysis of the propaganda deployed by the Wireless industry. [The proposed meeting, unfortunately never happended and we are now seeking that meeting with Mayor Wylie_xxx].

The Wireless industry distorts a clear understanding of the federal statutes and FCC regulations that are relevant for counties, cities, towns and villages to consider when making decisions about the placement, construction, modification and operations of Wireless Telecommunications Facilities (WTFs) of any size or any “G”. I recommend that the Council members listen to McGavin’s 20-minute presentation to the Dalton Gardens, ID, City Council on this topic in Oct 2021 (https://youtu.be/ZT79ffwPGuU), to better understand the powers local communities have to regulate WTFs in order to prevent the unnecessary, dense, wireless 4G/5G [antenna infrastructure_xxx] grid from being constructed in residential zones.

By exercising the City’s Police Powers, the City will preserve the quiet enjoyment of streets, protect residents’ privacy, and deliver actual public safety by passing local laws that serve the needs of its residents while still providing sufficient wireless telecommunications service (the ability to make outdoor wireless calls in most, but not all places).

McGavin lives in Petaluma, CA where in 2018, the City passed a simple addition to their wireless ordinance for so-called “small” Wireless Telecommunications Facilities (sWTFs). The City used its police powers — its zoning laws — to protect residential zones. In total, the City of Petaluma got this done in about 400 words, which I have included as Appendix A.

The 2020 ruling in City of Portland, et. al. v. FCC re: FCC Order 18-133, the sWTF Deployment Order, does not preclude your ability to update the City’s Wireless ordinance with additional restrictions for Wireless Telecommunications Facilities (WTFs). That is because FCC Order 18-133, is only a presumptive order — a statement of FCC desires and preferences. Therefore, FCC Order 18-133 is not and has never been federal law.

Please read the ruling itself and consider the analysis of Andrew Campanelli, the nation’s top telecommunications attorney, and the words of FCC attorney Scott Noveck, who argued the case on Feb 10, 2020. See a few quotes below and the full set of information here: https://wireamerica.org/campanelli

Attorney Andrew Campanelli at 30:29 in this July 23, 2020 video:

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

• The FCC can’t take away the powers preserved to towns by Congress — it wasn’t intended
• The FCC can’t wipe out twenty years of Federal judges’ interpretations
• 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.’”

[FCC_xxx] Attorney Scott Noveck [stated_xxx] at 35:05 in this Feb 10, 2020 Oral Argument in the US Court of Appeals, 9th Circuit:

At https://youtu.be/zoZHNSOibmo?t=35m05s:

“The Order doesn’t purport to prevent localities from addressing reasonable aesthetic requirements. In fact we say in the small cell order that aesthetic requirements are permitted . . . a locality could say if a 50-foot pole would be out of character with the surrounding neighborhood, you can’t put up a 50 foot pole.”

At https://youtu.be/zoZHNSOibmo?t=38m28s:

“These Orders [FCC 18-111 and FCC 18-133] are not self-enforcing. They 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.”

At https://youtu.be/zoZHNSOibmo?t=40m21s:

“Nothing in this order is self-enforcing.”

https://youtu.be/zoZHNSOibmo?t=40m52s:

“Anyone of these specific factual disputes that arise, this Order is designed to provide some clarity and narrow the scope of disputes . . . when there are remaining disputes, nothing about this Order is self-enforcing.”

Yes, FCC Order 18-133 is not self-enforcing. The city is not bound by this order because it is only a statement of preferences. That is what the FCC Order 18-133 says, as admitted by the FCC attorney himself, repeatedly. The 9th Circuit ruling in the City of Portland, et. al. v. FCC actually says this:

The judges ruled:

“We therefore hold that the FCC’s requirement in the Small Cell Order that aesthetic regulations be “no more burdensome” than regulations applied to other infrastructure deployment is contrary to the controlling statutory provision. See 47 U.S.C. § 332(c)(7)(B)(i)(II).

We also hold that the FCC’s requirement that all local aesthetic regulations be “objective” is not adequately explained and is therefore arbitrary and capricious.

We therefore:

• GRANT the petitions as to those requirements,
• VACATE those portions of the rule and
• REMAND them to the FCC.”

With the items, above, remanded, every other provision in FCC 18-133 must be consistent with the legislative intent of the 1996 Telecommunications Act (1996-TCA), and many are not, as explained in the 1996-TCA Conference Report (https://wireamerica.org/1996-tca-conference-report/). The Supreme Court recognized this document as the definitive source of legislative intent of the 1996-TCA in the 2005 US Supreme Court ruling in Abrams v Palos Verdes (https://wireamerica.org/compare).

In addition, every non-remanded provision in FCC 18-133 is open to case-by-case adjudication in the various federal circuits. City officials are not bound by FCC 18-133, but they are bound by state laws, US Court of Appeals rulings in the 9th and DC Circuits and by US Supreme Court rulings, including the following:

• 2005 US Supreme Court ruling in Abrams v Palos Verdes re: the legislative intent of the 1996-TCA
• 2005 9th Circuit ruling in MetroPCS v San Francisco re: defining both significant gap in telecommunications coverage and the least intrusive means to close a proven gap in coverage
• 2019 DC Circuit ruling in United Keetowah et al v. FCC re: need for NEPA environmental review for every Wireless Telecommunications Facilities (WTFs) of any size of any “G”
• 2019 DC Circuit ruling in Mozilla et al. v. FCC re: FCC having no authority to preempt states or municipalities in matters other than wireless telecommunications services (the ability to make an outdoor wireless phone call in most, but not all, places)
• 2021 DC Circuit ruling in Environmental Health Trust et al v FCC re: remanding FCC Order 19-126 and requiring the FCC to consider the 27 volumes of peer reviewed scientific studies (11,000+ pages) that establishes biological harms from RF microwave radiation at levels as low as 1 million times lower than the existing FCC RF microwave radiation exposure regulation; the remand also stopped an attempted de facto rule making that attempted to extend Specific Absorption Rate (SAR) to apply to frequencies above 6,000 MHz. That attempt failed, so there is no foundation for any guideline for transmitting RF microwave radiation above 6,000 MHz, until the FCC completes its court-mandated environmental review.

On Friday the 13th in August, 2021, the Wireless world irrevocably changed. On that day, the US Courts of Appeals, DC Circuit ruled in Case 20-1025, Environmental Health Trust, et al. v FCC — a lawsuit that challenged the legality of the FCC’s attempted de facto rule-making, a sneaky maneuver that tried to extend its current RF microwave radiation exposure guidelines to frequencies above 6,000 MHz, without any reasoned decision-making. The judges caught the FCC and remanded FCC Order 19-126 back to the FCC, invalidating the Order. In Case 20-1025, the DC Circuit judges ruled:

“. . . 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.”

Wireless radio frequency 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: 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.

[Considering all of this_xxx], adding a liability bond requirement for all new and existing wireless telecommunication facilities (WTFs) is clearly within the City’s state-granted police powers. The city requires liability bonds on [many_xxx] other construction permits. WTFs permits are no different, per the 1996 Telecommunications Act Conference Report, which says:

“The conferees also intend that the phrase ‘‘unreasonably discriminate among providers of functionally equivalent services’’ will provide localities with the flexibility to treat facilities that create different visual, aesthetic, or safety concerns differently to the extent permitted under generally applicable zoning requirements even if those facilities provide functionally equivalent services. 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 . . . 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.”

Essentially, a WTF of any size or any “G” is a factory that is comprised of heavy industrial equipment. The [dimensions_xxx] of the factory doesn’t matter, only its capacity to pollute: the maximum effective radiated power that the antennas can output. A factory that spews toxic pollution in the form of electromagnetic power though the air from these antennas must be mitigated under the City’s nuisance laws. Cities have the authority to regulate all forms of nuisance including electromagnetic power though the air (known as noise by the Wireless industry).

The City’s police powers include but are not limited to:

• Local laws to protect the quiet enjoyment of streets (and homes)
• Local laws to cap the maximum power output of any WTF to the level needed for [outdoor_xxx] wireless phone calls in [outdoor_xxx] areas accessible to humans: -125 dBm to -85 dBM and nothing higher
• Local laws to require a needs test, requiring neutral third-party analysis of existing RF microwave radiation levels in all frequencies reaching the jurisdiction [see https://ourtownourchoice.org/wewantit _xxx]
• Local laws to require NEPA review for every WTF, as required by the FCC itself.

The Idaho State Constitution concurs:

Preamble: We, the people of the State of Idaho, grateful to Almighty God for our freedom, to secure its blessings and promote our common welfare do establish this Constitution.

Section 39-102 (1). State policy on environmental protection.

“It is hereby recognized by the legislature that the protection of the environment and the promotion of personal health are vital concerns and are therefore of great importance to the future welfare of this state. It is therefore declared to be the policy of the state to provide for the protection of the environment and the promotion of personal health and to thereby protect and promote the health, safety and general welfare of the people of this state.”

Therefore, the city can require any Wireless Telecommunications Facilities (WTFs) in its jurisdiction to follow a workable recipe of three key parameters:

1. Vertical offset (a minimum number of feet off the ground where antennas would be installed)
2. Horizontal offset (a minimum number of feet from residential zones and residences where the antennas would be installed)
3. Maximum allowed Power output (no higher than -85 dBm in outdoor areas accessible to people)

In conclusion, the residents of Priest River are seeking to meet with Mayor Wylie and the City Council members to present and discuss the substantial written evidence included by reference in this letter which we are placing in the City of Priest River public record.

We are also seeking an agenda item to be placed on a future City Council meeting agenda to give staff direction to update Priest River’s Wireless telecommunications ordinance — an ordinance that upholds the residents’ inalienable constitutional rights consistent with the evidence we have presented and protects residents from the planned home invasion being attempted by the Wireless industry to place far too much electromagnetic power through the air (RF microwave radiation) into our homes.

Sincerely,

Anne Wilder

Appendix A: 2018 Petaluma Wireless Ordinance Addition

Source: Search for “Wireless” at https://www.codepublishing.com/CA/Petaluma/

14.44.020 Definitions

9. Telecommunications facility – small cell means a telecommunications facility that is pole mounted to existing public utility infrastructure.

14.44.095 Small cell facilities — Basic requirements

Small cell facilities as defined in Section 14.44.020 may be installed, erected, maintained and/or operated in any commercial or industrial zoning district where such antennas are permitted under this title, upon the issuance of a minor conditional use permit, so long as all the following conditions are met:

A. The small cell antenna must connect to an already existing utility pole that can support its weight.

B. All new wires needed to service the small cell must be installed within the width of the existing utility pole so as to not exceed the diameter and height of the existing utility pole.

C. All ground-mounted equipment not installed inside the pole must be undergrounded, flush to the ground, within three feet of the utility pole.

D. Each small cell must be at least one thousand five hundred feet away from the nearest small cell facility.

E. Aside from the transmitter/antenna itself, no additional equipment may be visible.

F. Each small cell must be at least five hundred feet away from any existing or approved residence.

G. An encroachment permit must be obtained for any work in the public right-of-way.

(Ord. 2662 NCS § 2 (part), 2018)