Posted By: Joseph Van Eaton, Matthew Schettenhelm and James Hobson
Do cell phones cause brain tumors or other health risks? At a September 14, 2009 hearing before a subcommittee of the U.S. Senate Committee on Appropriations, leading researchers testified that more research is needed before we definitively have an answer. This renewed attention to the health risks associated with cell phones and towers may mean that local governments, which regulate cell tower siting, may face an increasing number of questions from concerned citizens about the risks of radiofrequency emissions. Local government attorneys should be aware of both the limits upon their authority and the opportunities for local action in this area.
The Health Issues
The evidence of a link between cell phones and adverse health effects has been described as contradictory. Unlike x-rays or other forms of radiation that have been shown to cause harm, cell phones operate in frequencies that produce non-ionizing radiation, which does not independently mutate cells. As a result, many have argued that cell phones do not pose a health risk, and that the current evidence of a link between cellphones and cancer is weak or nonexistent. CTIA, the cell phone trade association, maintains that the “scientific evidence to date does not demonstrate any adverse health effects associated with the use of wireless phones.” This is consistent with the current views of the American Cancer Society, the FCC, and the FDA.
Others cite contrary findings, however, which do suggest reason for concern. For example, researchers have found that people who use cell phones for more than 10 years are more likely to get tumors on the side of the head on which they usually hold their phone; that exposure to such frequencies causes the blood brain barrier to be breached; and that DNA in rats is damaged by exposure to very low levels of cellular radiation. Some also contend that, just as early data failed to show a link between cancer and other harmful radiation, it may be too early to see a definitive link between cell phones and health risks. While these findings and views are now subject to vigorous debate, most do agree that additional research is needed with respect to long-term exposure and the effects on children, who appear to be more susceptible to potential harms. Thus, the placement of wireless antennas at or near schools, and the increasing use by young people of cell phones or other sources of non-ionizing radiation, has come under particular scrutiny by citizens and their elected officials. Several local government actions are noted below.
FCC Regulation
Acting through the National Environmental Policy Act (“NEPA”), the FCC currently regulates non-ionizing radiation from broadcast, cellphone, and other wireless transmitters, including cell phone towers, pursuant to 47 C.F.R. § 1.1310 and 47 C.F.R. § 1.1310. The FCC also regulates the Specific Absorption Rate (“SAR”) for individual cell phones. The SAR is a measure of the rate at which energy is absorbed by the body when exposed to a radio frequency electromagnetic field pursuant to 47 C.F.R. § 2.1093.
The FCC’s current rules for cell phones date from 1996, and are founded on scientific knowledge of the 1980s and 1990s. The rules are based on avoiding “thermal” harm – that is, overheating of the human body by direct exposure to radiation from antennas or from a wireless receiver itself, such as a cell phone. Under the current standard, before any cell phone is released on the market, it is tested to confirm that its maximum SAR level does not exceed 1.6 W/kg.
In 2003, the EMR Network urged the FCC to reconsider its antenna radiation and SAR standards, arguing that it is dated and fails to consider the potential health risks of non-thermal effects or long-term exposure. The FCC refused to revisit the issue. The FCC maintained that in adopting its regulation, the agency has relied on both standards produced by IEEE and ANSI, and on agencies such as the EPA and the FDA that have primary expertise and responsibility for ensuring health and safety. The FCC said it would reconsider its regulation in the event such agencies or other expert sources found reason for concern.
Local Government Role
With respect to cell tower siting, local governments can only consider the potential health effects of radiofrequency emissions within the limits of the Communications Act. Section 332(c)(7)(B)(iv) of the Communications Act provides that no local government may regulate siting based on the effects of radiofrequency emissions if the facility complies with the FCC’s regulations on the issue. Accordingly, local governments that deny a siting request based on health concerns beyond the FCC ’s regulations may find their decisions overturned by the courts.
However, while local government’s role in regulating radiofrequency emissions is limited, local entities can bring pressure to bear on Congress and on the FCC to address the health concerns. Some local entities – including Los Angeles County, California; the Los Angeles City School District; Glendale, California; Sebastopol, California; and Pima County, Arizona – have responded to local concerns by calling on Congress to revise Section 332(c)(7)(B)(iv) to allow local jurisdictions to more broadly consider the health effects of cell tower placement in their community. In May 2009, the City of Portland adopted a resolution calling for the FCC to work with the FDA and other relevant federal agencies to revisit and update studies on potential health concerns arising from RF wireless emissions.
Local governments can also educate citizens in this area. Those concerned about the potential adverse effects of cell phones often cite the precautionary principle. They maintain that even if we lack scientific proof of a link between cell phones and adverse health effects, we should take low-cost measures in order to avoid even the possibility of very costly future outcomes. Local governments officials can encourage such low-cost measures. They can urge cell phone users to take very basic steps, such as using a head-set or speaker, that will greatly reduce any potential risk. Local governments can also encourage users to check the SAR level of their cell phone at a site provided by the Environmental Working Group, or by inserting their cellphone’s FCC ID # at the FCC’s webpage.
Conclusions
Local counsel for communities should recognize:
Posted By: Nick Miller, Partner, Miller & Van Eaton
The Congress approved a delay in the Digital Television Conversion from February until June 12, 2009. This additional time has allowed the Federal Communications Commission and the Department of Commerce’s National Telecommunications and Information Administration to enhance and restructure the federal government’s consumer outreach programs.
Among the good news items:
The story is not over—but the trends are finally positive.
And please do your part by sharing this Consumers’ Union public education package with your electeds, agencies and local media: CLICK HERE for the PDF
Posted By: John Pestle, Partner, Varnum LLP
Attendees at IMLA’s spring seminar heard an update on recent appellate decisions favoring municipalities on their control of the rights-of-way as to (and fees from) telecommunications companies. This reflects 13 years of litigation on basic principles under the Telecommunications Act of 1996 which now appears to be coming to a favorable close, although the Supreme Court may yet step in. And attendees heard about state and Federal efforts to site electric transmission lines, overriding local control.
Viewed from a longer perspective, these are both part of a long-term and continuing debate between local units of government and state/national authorities regarding franchising and control over the rights-of-way. Briefly, at their inception most classic utilities (telephone, gas, electric, cable) were solely local operations – - operated just within one city – -and thus were franchised and regulated locally. And hence control over the rights-of-way as to them was local as well.
Technological developments helped change this. For example, the electric industry shifted to large, much more efficient plants which served large areas, such as many cities and counties, and built transmission lines which connected plants within a state and then between states. As a result, electric regulation over rates and terms of service shifted to the state and national level. The telephone industry had previously followed a similar trajectory and with the shift from locally manufactured gas to natural gas from the Southwest after World War II, gas utilities followed a similar route. Most recently, the cable industry has moved in the same direction, with more operations moving from the purely local to the regional level.
From the perspective of local government although economic regulation (rates, terms of service) tended to shift to the state or national level, control of the rights-of-way tended to remain local for obvious reasons. Even so, tensions remained, and remain to this day.
In the most widely used type of example, if a line (telephone, electric, gas or whatever) has to run through Community A (but not provide service in A) in order to provide local service in Community B, then can/should Community A be able to take actions to protect its interests, with consequent adverse affects on persons in Community B who are receiving service? Community’s A’s actions may range from prohibiting the construction of the line, to changing its route, to taking other actions to mitigate visual or other harms (e.g. – - undergrounding), to the most prosaic of engineering-oriented street and right of way matters.
But if, as has occurred or been proposed in some instances, the state or Federal government controls the permitting process for such a line, to what extent can or should it in the interest of the residents of Community B be able to ignore or overturn the interests of Community A, such as running a line through natural or scenic areas of Community A with consequent significant adverse impacts on it and its residents?
The point is that the tension created by these issues is long-standing, and is sometimes portrayed as being between state and local interests, and sometimes portrayed as being between the interests of the communities receiving service versus those traversed by (but not receiving service from) utility lines. That tension can be seen in court decisions and constitutional debates from over a hundred years ago. And these issues are still being wrestled with today, as exemplified by the IMLA sessions this past week.
Posted By: Adrian Herbst, The Baller Herbst Law Group, P.C.
A bill that would ban new “discriminatory” taxes on mobile phone services and property has been reintroduced in Congress. The Cell Tax Fairness Act of 2009, a version of which was introduced but failed to pass in both 2008 and 2007, would impose a five-year moratorium on the enactment of any new “discriminatory tax” by local or state governments on “cell phones services, providers, or property.” It was reintroduced just last week as H.R. 1521 by Reps. Zoe Lofgren (D-CA) and Trent Franks (R-AZ). A companion bill was also introduced in the Senate.
The Act apparently does not preempt existing state or local tax measures applicable to mobile telephony services. It only would affect new taxes to the extent that they are “discriminatory,” that is, not imposed generally, or imposed at a lower rate, for other tangible personal or commercial property or for “persons that are engaged in businesses other than the provision of mobile services.” According to Rep. Lofgren, “The Cell Tax Fairness Act does not take away any existing revenue for state or local governments, it simply calls for a period of tax stabilization.”
The bill defines “tax” as “any charge imposed by any state or local government for the purpose of generating revenues for governmental purposes.”
The bill was referred to the House Judiciary Committee.
While the bill is obviously supported by the cell phone industry – and its powerful lobby – we expect the bill to face opposition from a wide variety of parties, likely including state and municipal governments and their representative organizations. Interested representatives of communities who would like to have further information or updates concerning this legislation are encouraged to contact us. We will continue to monitor this legislation, assist municipalities desiring to participate in the deliberation process, and otherwise provide updates as may be requested.
Click the following link for text of the Bill: http://www.opencongress.org/bill/111-h1521/show
Click the following links for recent articles:http://www.cnet.com/8301-17918_1-10200106-85.html; http://arstechnica.com/telecom/news/2009/03/5-year-ban-on-higher-cell-phone-taxes-proposed-again.ars
Posted by: John Pestle, Partner – Varnum, Riddering, Schmidt & Howlett, LLP
PEG channel disputes have now moved (literally) to a new level. Historically, these were handled on a local level. Now as a new FCC case on PEG matters exemplifies, they are increasingly “federalized,” i.e., being shifted to the federal level. This post will briefly describe the reasons for this shift, put it in historical perspective, and note the related point that municipalities wishing to preserve PEG channels as they have traditionally been provided should file comments with the FCC by March 9.
Traditionally, local franchises have set forth the specifics on channels for public, education or governmental (PEG) use – - for example, the number of channels to be provided, funding for them, who would operate them, where a studio might be located, and so on.
Several things have changed to upset this situation: First, in some major states (such as Texas, California and Florida) franchising has been shifted to the state level with statutory provisions and franchise terms which discourage PEG channels. Second, cable operators have taken actions that discourage (and sometimes lead to the elimination of) PEG channels such as not agreeing to new channels, eliminating or consolidating existing channels, decreasing or eliminating PEG funding, and eliminating studios and other “in kind” support for PEG channels. A cynic might note that PEG channels take up space which otherwise might be used by programmers who would pay the cable company to have their channels carried (more shopping channels anyone?).
In a more recent action affecting PEG channels, Comcast (and other cable companies) have attempted to conserve channel space by providing PEG channels (but only PEG channels) solely in a digital format (digital channels take up less space on a cable system than older analog channels). However customers with older analog TV sets will have to get (and in many cases, pay the cable company for) a converter box in order to get PEG channels and, for example, see their city council meeting and the like. This converter box is different from the one necessary for older TVs to continue working with rabbit ears. Comcast has also proposed to put PEG channels into what some have viewed the “digital desert” (i.e., channels in the 900 range).
Concurrently, AT&T has attempted to put PEG channels on a separate and inferior video delivery system from that used for all its other channels. In essence, on AT&T systems, PEG signals are provided in a manner that makes them hard to access (hundreds of PEG channels located on “Channel 99,” with individual channels accessed slowly by a click-through menu), the actual picture is in a “You-Tube” internet type format and lacks the functionality (compatibility with digital video recorders, closed captioning and the like) of all other channels.
The upshot are three Petitions to the FCC relating to PEG channels: Two (by the City of Lansing and the Alliance for Community Media) challenge under federal law AT&T’s provision of PEG channels in a manner different and inferior to that of other channels. The third petition (Dearborn et al.) challenges Comcast’s actions as violating federal requirements that PEG channels be part of the “basic service tier” and other requirements.
In early February, the Obama FCC combined these three cases into one and solicited comments from all interested parties by March 9. As is perhaps obvious, this “federalization” of PEG channel matters follows somewhat naturally from the state cable legislation that is generally harmful to PEG and takes away the prior local forum for resolving PEG channel issues. Cities and PEG advocates are thus left only with the Federal Cable Act and Federal forums (FCC, Federal Courts) to defend PEG channels.
From a broader perspective, PEG Federalization bears some relation to the 2007 decisions by the Bush FCC towards federalizing the cable franchising process by setting standards for cable franchise grants and renewals, especially those involving phone companies seeking cable franchises. The FCC decisions asserted broad jurisdiction by the FCC over what heretofore had been viewed as purely local franchising matters, a position generally upheld by the Sixth Circuit Court of Appeals in 2008.
Viewed from a historical perspective, such federalization of cable matters follows classic patterns in utility regulation: Although we do not focus much on it these days, regulation of the classic utilities such as telephone, gas, and water at its inception was exclusively local through so-called “franchise regulation.” But as those utilities expanded to cover multiple franchise areas and then multiple states, regulation shifted from the local municipality to the state and often thence to the federal level. The specifics here are different but viewed from the sweep of the past 150 years the result is much the same – - the federalization of what had been previously largely local issues.
To come back to the immediate point, if a municipality is interested in preserving its PEG channels as they have traditionally been provided – - each on its own channel number, easily accessible, in high quality, and generally the same in accessibility, quality and features as local TV stations on cable – - make sure to file comments at the FCC by March 9. The relevant FCC documents, including information from its Public Notice on how to file, are available, among other places, on our web site at http://www.varnumlaw.com/serviceGroups/cableTV/cableFranchising/
