Series: “Legally Speaking”
In September 2010, Justice Scalia spoke with UC Hastings law professor Calvin Massey
- Authors: Antonin Scalia and Bryan A. Garner
- Hardcover : 608 pages
- ISBN-13 : 978-0314275554
- Publisher: West; 1st Edition (June 19, 2012)
Reading the 1996 Telecommuncations Act (1996-TCA)
47 U.S. Code § 301 – License for radio communication or transmission of energy
It is the purpose of this chapter, among other things, to maintain the control of the United States over all the channels of radio transmission; and to provide for the use of such channels, but not the ownership thereof, by persons for limited periods of time, under licenses granted by Federal authority, and no such license shall be construed to create any right, beyond the terms, conditions, and periods of the license.
No person shall use or operate any apparatus for the transmission of energy or communications or signals by radio
(a) from one place in any State, Territory, or possession of the United States or in the District of Columbia to another place in the same State, Territory, possession, or District; or
(b) from any State, Territory, or possession of the United States, or from the District of Columbia to any other State, Territory, or possession of the United States; or
(c) from any place in any State, Territory, or possession of the United States, or in the District of Columbia, to any place in any foreign country or to any vessel; or
(d) within any State when the effects of such use extend beyond the borders of said State, or when interference is caused by such use or operation with the transmission of such energy, communications, or signals from within said State to any place beyond its borders, or from any place beyond its borders to any place within said State, or with the transmission or reception of such energy, communications, or signals from and/or to places beyond the borders of said State; or
(e) upon any vessel or aircraft of the United States (except as provided in section 303(t) of this title); or (f) upon any other mobile stations within the jurisdiction of the United States, except under and in accordance with this chapter and with a license in that behalf granted under the provisions of this chapter.
(June 19, 1934, ch. 652, title III, § 301, 48 Stat. 1081; Pub. L. 97–259, title I, §§ 107, 111(b), Sept. 13, 1982, 96 Stat. 1091, 1093.)
47 U.S. Code § 324 – Use of minimum power
In all circumstances, except in case of radio communications or signals relating to vessels in distress, all radio stations, including those owned and operated by the United States, shall use the minimum amount of power necessary to carry out the communication desired.
(June 19, 1934, ch. 652, title III, § 324, 48 Stat. 1091.)
47 U.S. Code § 153 – Definitions
(11) Common carrier: The term “common carrier” or “carrier” means any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or interstate or foreign radio transmission of energy, except where reference is made to common carriers not subject to this chapter;
(57) Transmission of energy by radio: The term “transmission of energy by radio” or “radio transmission of energy” includes both such transmission and all instrumentalities, facilities, and services incidental to such transmission.
(40) Radio communication: The term “radio communication” or “communication by radio” means the transmission by radio of writing, signs, signals, pictures, and sounds of all kinds, including all instrumentalities, facilities, apparatus, and services (among other things, the receipt, forwarding, and delivery of communications) incidental to such transmission.
(59) Wire communication: The term “wire communication” or “communication by wire” means the transmission of writing, signs, signals, pictures, and sounds of all kinds by aid of wire, cable, or other like connection between the points of origin and reception of such transmission, including all instrumentalities, facilities, apparatus, and services (among other things, the receipt, forwarding, and delivery of communications) incidental to such transmission.
(42) Radio station: The term “radio station” or “station” means a station equipped to engage in radio communication or radio transmission of energy.
(29) Land station: The term “land station” means a station, other than a mobile station, used for radio communication with mobile stations.
(34) Mobile station: The term “mobile station” means a radio-communication station capable of being moved and which ordinarily does move.
(A) both one-way and two-way radio communication services,
(B) a mobile service which provides a regularly interacting group of base, mobile, portable, and associated control and relay stations (whether licensed on an individual, cooperative, or multiple basis) for private one-way or two-way land mobile radio communications by eligible users over designated areas of operation, and
(C) any service for which a license is required in a personal communications service established pursuant to the proceeding entitled “Amendment to the Commission’s Rules to Establish New Personal Communications Services” (GEN Docket No. 90–314; ET Docket No. 92–100), or any successor proceeding.
(33) Mobile service: The term “mobile service” means a radio communication service carried on between mobile stations or receivers and land stations, and by mobile stations communicating among themselves, and includes
(53) Telecommunications service: The term “telecommunications service” means the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.
(24) Information service: The term “information service” means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.
Problems With So-Called “small” Wireless Telecommunications Facilities (sWTFs)
sWTFs are falsely branded. They are 25 million times more powerful than Macro Cell Towers, once you consider the metric that matters — the intensities of the toxic pollutant (RF/MW radiation) that reaches second- and third-story bedrooms:
What Really Matters: Excessive Effective Radiated Power (ERP)
That Results in RF Microwave Radiation Intensities in 2nd-Story+ Bedrooms
|Cell Tower||Vertical Distance Off Ground||Horizontal Distance Away||Power in bedroom|
|So-Called “small” cell WTF||35 feet||60 feet||50,000 avg. radiation units|
|Macro cell WTF||200 feet||2,500 feet||0.002 avg. radiation units|
Conclusion: 50,000 µW/m² from a so-called “small” cell is 25 million times more powerful than 0.002 µW/m² (-85 dBm) from a Macro cell —
Note: -85 dBm is a signal strength which provides 5 Bars of telecommunications service on a cell phone (source: link to The Truth About 4G/5G in Sacramento )
Sacramento, CA: 60 feet from home → children immediately sickened (© Windheim EMF Solutions) | San Francisco, CA: 10 feet from home → brain tumor diagnosed in three months | Santa Rosa, CA: 20 feet from home → home sold at 23% discount ($150,000+ loss in property value)
47 U.S. Code § 332 – Mobile services
(a) Factors which Commission must consider in taking actions to manage the spectrum to be made available for use by the private mobile services, the Commission shall consider, consistent with section 151 of this title, whether such actions will—
(1) promote the safety of life and property;
(2) improve the efficiency of spectrum use and reduce the regulatory burden upon spectrum users, based upon sound engineering principles, user operational requirements, and marketplace demands;
(3) encourage competition and provide services to the largest feasible number of users; or
(4) increase interservice sharing opportunities between private mobile services and other services.
. . .
(c) Regulatory treatment of mobile services
(1) Common carrier treatment of commercial mobile services
(A) A person engaged in the provision of a service that is a commercial mobile service shall, insofar as such person is so engaged, be treated as a common carrier for purposes of this chapter, except for such provisions of subchapter II as the Commission may specify by regulation as inapplicable to that service or person. In prescribing or amending any such regulation, the Commission may not specify any provision of section 201, 202, or 208 of this title, and may specify any other provision only if the Commission determines that—
(i) enforcement of such provision is not necessary in order to ensure that the charges, practices, classifications, or regulations for or in connection with that service are just and reasonable and are not unjustly or unreasonably discriminatory;
(ii) enforcement of such provision is not necessary for the protection of consumers; and
(iii) specifying such provision is consistent with the public interest.
. . .
(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—
(I) shall not unreasonably discriminate among providers of functionally equivalent services; and
Definition of functionally equivalent services: “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. ;
(II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.
Definition of personal wireless services: ” the term ‘ personal wireless services‘ means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services;”
PERSONAL WIRELESS SERVICES = WIRELESS PHONE CALLS.
. . .
(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.
Link to Cellular Telephone Co. v. Town of Oyster Bay — Jan 29, 1999
A. Substantial Evidence
AT&T argues that the permit denials violated the TCA because neither was supported by substantial evidence. The Town acknowledges that the health concerns expressed by residents cannot constitute substantial evidence. 47 U.S.C. § 332(c)(7)(B)(iv)
Wire America: Looks like a “concern” is not based on substantial evidence, but an “effect” is based on substantial evidence . . .
- concern (noun) :: an uneasy state of blended interest, uncertainty, and apprehension
- effect (noun) :: something produced by an agent or cause; a result, outcome or consequence
(“No . . . local government . . . 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.”)
- See Illinois RSA No. 3, Inc. v. County of Peoria, 963 F. Supp. 732, 745 (C.D.Ill. 1997)(holding that the generalized health concerns of citizens are insufficient to rise to the level of substantial evidence).
- See also AT&T Wireless PCS, Inc. v. City Council, 155 F.3d 423, 431 n.6 (4th Cir. 1998) (noting that TCA precludes “health concerns from radio emissions”).
However, the Town argues that the aesthetic and property value concerns expressed by citizens were sufficient to satisfy the substantial evidence standard.
The statute uses the term “environmental effects” to describe an impermissible basis for decision. Although one court has questioned whether “environmental effects” and “health concerns” are the same . . .
- See Iowa Wireless Servs., L.P. v. City of Moline, Illinois, 29 F. Supp.2d 915, 924 (C.D. Ill. 1998),
. . . we believe that the terms are interchangeable and will use “health concerns” to refer to the constituent testimony on the connection between [Radiofrequency Emissions] and cancer and other health problems.
We look at the record as a whole to see whether or not there is substantial evidence that the permits were denied on permissible grounds.
- See American Textile, 452 U.S. at 523.
A review of the record before us of the two hearings reveals that the bulk of the testimony addressed citizens’ fears of adverse health effects from the cell sites. It is true that raising such concerns does not violate the TCA,
- see Smart SMR v. Zoning Comm’n, 995 F. Supp. 52, 58 (D. Conn. 1998)
. . . (pointing out that locality does not violate the TCA by “merely inquiring into the safety of emissions from a wireless facility”).
But when the testimony is almost exclusively directed to health effects, there must be substantial evidence of some legitimate reason for rejecting the applications to avoid the conclusion that the denials were based on the impermissible health effects ground.
- See Iowa Wireless Servs., L.P. v. City of Moline, Illinois, ___ F. Supp.2d ___, 1998 WL 879518 at 9 (C.D. Ill. Nov. 10, 1998)
(holding that TCA § 332(c)(7)(B)(iv) “prevents the denial of a permit on the sole basis that the facility would cause negative environmental effects“) (emphasis added).
We therefore turn to the aesthetic and property value concerns expressed by citizens to determine whether the Board possessed substantial evidence on one or both of these grounds that could provide a legitimate basis for these denials.
Wire America: It is easy to criticize the errors made by the judge(s) in this Second Circuit Ruling from 1999 and it is important to note that this decisions applies only to the Second Circuit.
[when considering] “environmental effects” and “health concerns” . . . “we believe that the terms are interchangeable.”
- No US Court of Appeals judge has the authority to rewrite the plain language of federal preemption law: Title 47 U.S.C §332(c)(7)(B)(iv)
- Such a determination cannot be based on “beliefs”, but based on evidence
- Clearly “effects” (substantial evidence) cannot be lumped together with “concerns” (worries) of any kind
- Environmental effects and health effects are both phenomena supported by substantial written evidence, and these phenomena are separated by a plain-to-see and self-evident barrier: the skin of living organisms, including human beings
- In addition, according to this map: https://www.uscourts.gov/sites/default/files/u.s._federal_courts_circuit_map_1.pdf
- Oyster Bay, New York is in the US Court of Appeals Second Circuit. The case was filed in the United States Court of Appeals, Second Circuit on (Ruling on 1/29/99), not in the Ninth Circuit and not taken to the US Supreme Court.
- Iowa is in the US Court of Appeals Eighth Circuit. The case was filed in US District Court, Central Division (Ruling on 11/10/1998), so another lower court that is not in the Ninth Circuit.
- California is in the US Court of Appeals Ninth Circuit, so the citations inn  and , above, do not apply to any territory in the Ninth Circuit.
The Ninth Circuit judges have the opportunity to correct this obvious error because environmental effects are not health concerns and not health effects. Results from tens of thousands of Scientific studies of adverse biological effects of RF-EMR exposures through 2020 are sufficient to correct this error.
At present, attorneys are allowing “legally fashionable” opinions of other attorneys and judges to affect crucially important life-and-death decisions made by the City Councils, due to insufficient due diligence. This is wrong and must be corrected.
IN THE 9th CIRCUIT COURT of APPEALS,
ENVIRONMENTAL EFFECTS ≠ HEALTH EFFECTS
EFFECTS (evidence) ≠ “CONCERNS” (of ANY kind)
(June 19, 1934, ch. 652, title III, § 332, formerly § 331, as added Pub. L. 97–259, title I, § 120(a), Sept. 13, 1982, 96 Stat. 1096; renumbered § 332, Pub. L. 102–385, § 25(b), Oct. 5, 1992, 106 Stat. 1502; amended Pub. L. 103–66, title VI, § 6002(b)(2)(A), Aug. 10, 1993, 107 Stat. 392; Pub. L. 104–104, § 3(d)(2), title VII, §§ 704(a), 705, Feb. 8, 1996, 110 Stat. 61, 151, 153; Pub. L. 115–141, div. P, title IV, § 402(g), Mar. 23, 2018, 132 Stat. 1089.)
COMPLIANCE WITH FCC RF-EMR GUIDELINE ≠ PUBLIC SAFETY