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On Thursday, May 7, 2020 5G Free California hosted a national webinar “Ask the Lawyers” which featured four attorneys who have been working on the 5G/wireless issue including: Scott McCollough, who together with Robert F. Kennedy Jr. is representing the Children’s Health Defense, Dr. David Carpenter and other petitioners in their case against the FCC; he is also the attorney for the Irregulators; Andrew Campanelli, an attorney with telecom background who has been working for years to stopping cell towers installations; Mark Pollock, from Pollock and James, a veteran environmental law attorney and a former environmental prosecutor and Ariel Strauss from Green Fire Law, a municipal and environmental attorney who has been working with communities in CA to negotiate better ordinances. 

The webinar enabled advocates from around the country to get professional answers to their questions regarding legal strategies to stop 5G and related infrastructure in communities and nationally.  

The webinar was very successful and Julie Levine, the Executive Director of 5G Free CA, has received many dozens of grateful emails. 5G Free California realizes that there was a lot of technical legal information that most people couldn’t completely comprehend and remember and requests were also received from those who could not attend. For these reasons, 5G Free California is generously providing video and the Transcript of the 90 minutes Q&A, as well as an Executive Summary. Advocates will find the information to be very informative and helpful to their efforts.  

Watch the Ask The Lawyers Q&A Session 

Read the Executive Summary

Read the Full Transcript

A message from 5G Free California: “While it is our intention to continue to provide this and future webinar transcripts as a service to all of you collaborating in the fight to halt the 5G roll out, we do so at a significant expense to our group, and would welcome any donation you can provide to allow us to continue to host these Webinars and further assist you in your efforts. Should you be able to and choose to make a donation, you can do so here: https://5gfreecalifornia.org/donate/.” 

What people wrote us about the webinar:

“This call was fantastic and for those of us who have been fighting this for awhile now, these are the biggest hitters out there on the legal side. That said, to have the privilege to hear all of them on this call answering questions – I cannot express enough my gratitude for the experience!” 

“Great Job Julie extremely helpful.”

“Great program last night, the first one I succeeded in watching, and I look forward to getting the replay information so I can forward it around myself. “

“I wanted to thank you for organizing that call last night. It was incredibly informative.”

“Great panel last night and you were a terrific moderator.”

“It was filled with actionable steps that we can take advantage of right away.  I look forward to getting the video version so I can share with our village officials.”

“I am wiser, stronger and better equipped as I continue my fight in Ohio – thank you for that!”

“It was a truly wonderful meeting.  I can’t tell you how grateful I am to have the transcript.  It gives hope, besides solid tools.”

“I heard your call last week and was very impressed. I’d like to hear more of your events. The lawyers were especially good, and you organized it very well and kept things moving.”

SUCCESS: The Children’s Health Defense Forced FCC to Publish in the Federal Register, Blocking it from Dismissing Lawsuits

By Dafna Tachover, CHD’s Director of 5G & Wireless Harms Project

On April 1st, 2020, the FCC finally published its December 4, 2019 “RF Order” (FCC 19-126) in the Federal Register. The Federal Register notice addresses the FCC’s outrageous refusal to update its RF exposure limits or reconsider whether outer ears should be treated differently than other extremities since users often place cell phones on the ear (Docket 13-84), the final rule amendments making it easier to prove compliance with the outdated rules (Docket 03-137). The publication in the Federal Register   follows Children’s Health Defense’s (CHD) motion in its case against the FCC, CHD v FCC, to force the FCC to publish its decision. As a result, the FCC will have no basis to seek dismissal of CHD’s or the Environmental Health Trust’s (EHT) case and will likely prevent the FCC from being able to control venue – where the cases will be heard. The FCC much prefers the US Court of Appeals for the District of Columbia Circuit.

The Federal Register is part of the National Archives and Records Administration. It is the official “newspaper” of the federal government. Every decision, order, regulation or law must be published in the Register. The office annually compiles all current regulations into bound volumes of the Code of Federal Regulations (CFR). Most federal agency actions are not effective or final for judicial review purposes until they are published in the Federal Register.

On December 4, 2019 the FCC closed Docket 13-84 and released FCC 19-126. There were 2 relevant actions: a “Resolution of Notice of Inquiry” in ET Docket No. 13-84 regarding “Reassessment of Federal Communications Commission Radiofrequency Exposure Limits.” The FCC decided there is no evidence of harm from wireless technology and therefore, no need to review the RF safety guidelines. Most appalling was the FCC’s refusal to reconsider the impact on children or take into account that many users still place their cell phones right on their ear, and thereby receive more radiation exposure than the rules contemplate. CHD’s case (Petition for Review) against the FCC, claim the decision is arbitrary, capricious, not evidence based and an abuse of discretion. The FCC also released a “Second Report and Order” and Memorandum Opinion and Order” in ET Docket No. 03-137. This part amended the existing exposure guidelines to allow industry to even more prodigiously inflict harm on an unsuspecting and vulnerable public.

Under the Administrative Procedure Act, an injured party can sue the FCC within 60 days of the “date of public notice,” which is usually understood to be the date of publication in the Federal Register. However, 60 days after the FCC released its decision, the decision was not published in the Federal Register. To prevent any FCC argument that the window for review petitions closed on the 60^th day after the December 4, 2019 release Children’s Health Defense filed a case in the US Court of Appeals for the Ninth Circuit on February 2, 2020. The Environmental Health Trust filed a case as well, 2 days earlier, in the US Court of Appeals for the District of Columbia Circuit.

Under federal law, when cases are submitted in different courts against the same government agency’s decision, the cases are transferred to one court. The venue is typically determined by a multi-jurisdictional panel in what is referred to as the “lottery process.”

The FCC, however, devised a nefarious plan that would allow it to control timing and venue and even perhaps block judicial review. It purposefully delayed publication to prevent the lottery and push venue to the court it prefers – the DC Circuit – and potentially even obtain dismissal or a long delay until it finally got around to publishing notice. The FCC’s efforts to get the case out of the Ninth Circuit and before the DC Circuit strongly indicates FCC thinks it will do better there and would have a harder time defending the decision before the Ninth circuit.

On 2/12/2020 the FCC submitted a Motion to Transfer, asking the Ninth Circuit to transfer CHD’s case to the DC Circuit claiming that because EHT’s submitted the case two days before CHD, EHT has won a “race to the courthouse” and the cases should be heard in the DC Circuit Court. EHT submitted an Amicus Brief in support of the FCC motion to transfer our case to the DC circuit based on the same argument. CHD replied that the “race” never started because the “starting gun” (Federal Register publication) had never sounded, and, indeed, there was not supposed to be a race at all.

Scott McCollough, the attorney who leads CHD’s case together with Robert F. Kennedy Jr., saw through the FCC’s the FCC’s effort to game the rules, and quickly responded. CHD submitted a “Motion for Affirmative Relief and an Opposition to Motion to Transfer” on 2/18/20. CHD’s motion claimed the FCC was purposely withholding publication in the Federal Register. It further explained that under the courts’ procedural rules and statutes once Federal Register publication happens petitioners have a 10 day window to invoke the lottery process. This means that where the cases should be heard should not be based on a “race to the courthouse.” The Motion states:

“The Motion to Transfer is the FCC’s opening move in a game of “gotcha.” If the FCC prevails on its motion the Commission will promptly reverse course, abandon its apparent contention before this Court that the “Order” is presently reviewable, and tell the D.C. Circuit that since there has been no Federal Register publication both cases are “premature” and must be dismissed. If the D.C. Circuit agrees the FCC will succeed in completely immunizing the “Order” from any review whatsoever until the FCC gets around to publishing notice, if it ever does so.”

The FCC obviously realized its gambit would not work, so it finally stopped trying to delay and went forward with publication. CHD’s efforts won the day. We forced the FCC to publish in the Register; prevented the FCC from being able to dismiss the cases claiming they are premature; and ensured that the proper process to set venue is used: a Multi-Jurisdictional panel lottery process (rather than the FCC) should now decide which court will hear CHD’s & EHT’s cases. The 4/1/20 publication means the two review petitions will soon be able to move forward to consideration on the merits.

To support our efforts, ensure that we continue and do an excellent work on this case, please make a donation. When making a donation, please choose Stop5G).  

On June 27, 2019, some of the leading Senators in Congress submitted a Bill – S. 2012 to restore local control over the deployment of 5G and abolish FCC regulations. 

The Bill S. 2012 – Restoring Local Control Over Public Infrastructure Act of 2019 was submitted by Senator Dianne Feinstein (D-CA) and is cosponsored by some of the leading Democrat Senators in Congress: Senator Charles E. Schumer (D-N.Y.), Michael Bennet (D-Colo.), Kamala D. Harris (D-Calif.), Ron Wyden (D-Ore.), Ben Cardin (D-Md.) and Richard Blumenthal (D-Conn.).

The Bill aims to abolish 3 the following regulatory actions adopted by the Federal Communication Commission and declares then as having “no force or effect”. Following a

1. The –  “Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment and Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment’’ adopted by the Commission on August 2, 2018 (FCC 18–111). 
2. The ‘‘Declaratory Ruling and Third Report and Order in the matter of Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment and Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment’’ adopted by the Commission on September 26, 2018 (FCC 18–133).
3. The rule adopted by the Commission titled ‘‘Accelerating Wireless and Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment’’ (83 Fed. Reg. 51867 (October 15, 2018)).

The Bill is The bill is supported by the U.S. Conference of Mayors, National Association of Telecommunications Officers and Advisors, American Public Power Association, Communications Workers of America, National Association of Counties, League of California Cities and American Public Works Association.

Rep. Eshoo (D-CA) submitted on January 14, 2019 a House Bill – H.R.  530 Accelerating Broadband Development by Empowering Local Communities Act of 2019 which overturns the FCC’s ruling FCC 18–111 & 83 Fed. Reg. 51867 . Hence, the Senate Bill is wider and overturns also the Sept. 26 ruling FCC 18–133

While these bills are very much welcomed they still do not address the most important issue – the health effects of this technology. When will a Congressman will introduce a bill to overturn Section 704 of the Telecommunication Act of 1996 and or to amend it to clarify that ‘Environmental Considerations’ do not include ‘Health’ considerations. 

IMPORTANT – TO ANYONE WHO WORKS WITH MUNICIPALITIES ON ORDINANCES

Please be aware that according to Next Century Cities analysis of compliance with the Sept. 26 FCC Regulations, titled Summary of Final FCC Small Cell Order municipalities should insert a clause into their agreement with a carrier or infrastructure provider that voids the agreement or requiring  its modification, in the event of a regulatory change (including the overturning of the Order). 

Following is the exact text from the document: 

If a city enters into an agreement with a carrier and then the Order is overturned, is the city stuck with the agreement?
The answer in general is yes. No city is required to enter into any agreement with a
carrier or infrastructure provider. If a city does so voluntarily, it will almost certainly be
held to the terms of the agreement by a court. However, a city might be able to resolve
this problem by including in the agreement a clause voiding the agreement or requiring
its modification, in the event of a regulatory change (including the overturning of the
Order). Many types of telecommunications agreements contain such regulatory change
clauses because parties recognize that the wording or scope of specific provisions in the
agreement has been dictated by the then-existing telecommunications regulatory
scheme, and should be changed if the regulations change.

On June 13, Oregon Senate, in a unanimous vote passed SB 283, school wireless safety bill which directs Oregon’s Health Authority to Review INDEPENDENTLY FUNDED studies (ie – excluding wireless industry funded studies) on the health effects of wireless technology radiaiton and especially of Wi-Fi networks used in schools. The Bill is expected to pass the vote in the House. 

PRESS HERE to watch Sen. Laurie Monnes-Anderson’s speech before the vote (Instructions:click the link and either scroll down to SB 283 or advance the video to 1:45:00
.Senate Chamber Convenes 06/13/2019 04:00 PM – Jun 13th, 2019). 

The effort to pass the bill is led by David Morrison. David has been working to expose the absurdity of using of Wi-Fi in schools since 2011 when he submitted a lawsuit against Portland Public Schools for forcing involuntary exposure to radiation from powerful Wi-Fi in schools. The Press Release regarding the vote is Following. 

PRESS Here for an article “School Wireless Safety Bill Passes State Senate” published June 14. 

Wi-Fi in schools is also my personal soft spot and I was inspired by David’s lawsuit in 2011 and it pushed me to submit my lawsuit in Israel to remove Wi-Fi from schools and to install wired networks instead, a lawsuit that led to the first limitations on Wi-Fi in schools worldwide. I have submitted a testimony in support of the SB 283, Press Here to read the Testimony Submission of Dafna Tachover from We Are The Evidence to the Oregon’s Senate Health Committee in support of SB 283.

Recently, the Oregon Education Association – the union that represents 44,000 teachers across in  published a report about the crisis of out of control behavior of students. Oregon KGW8 followed with an article: Classrooms in Crisis: Verbal, physical, sometimes violent outbursts plaguing Oregon classrooms. Those of us who know the scientific evidence on the adverse effects of wireless have no doubt that the Wi-Fi in the classes and cell towers in/near schools are a major contributor to this problem if not the main cause. 

An  excellent article was published by the Epoch Times about the the adverse health effects of Wi-Fi in Schools  Wi-Fi in Schools: Experimenting With The Next Generation. 

The Press Release of David Morrison:

Written by: Martine Vriens, Director of International Legal Affairs for We Are The Evidence

On 30 January, 2019, an Italian Court in the city of Monza, Italy ruled that the Acoustic Neuroma brain tumor of an airport employee was caused by exposure to the radiation from a cell phone he used for over 10 years for his work. The court determined that the tumor has permanently incapacitated him, and ruled it to be an occupational disease. PRESS HERE for the Court’s Decision.

This is the fourth case in which the courts in Italy determined that an Acoustic Neuroma type brain tumor was caused by a cell phone, and the fifth court to make such ruling as in the first case the court decision was appealed and later confirmed by Italy’s Supreme Court. A Summary of the four cases is in the bottom of this article. 

The importance of the decision is not only that it’s another Italian Court decision that establishes the link between brain tumors and exposure to Radio-Frequency/Microwave Radiation that is emitted from cell phones, but also by recognizing that if the exposure to electromagnetic radiation (EMR) was necessary for the purposes of work, the Acoustic Neuroma tumor may be considered an Occupational Disease.

Acoustic Neuroma, also known as Vestibular Schwannoma is a tumor which develops on the main nerve leading from the inner ear to the brain. This nerve influences balance and hearing, and pressure from an acoustic neuroma can cause hearing loss, ringing in the ear, and unsteadiness. Occasionally, it can interfere with brain functioning. It is a schwannoma type of tumor which means it develops on the Schwann cells covering the nerve.

It is important to mention that in the National Toxicology Program study of the US Federal government, the tumors that were found to be caused by exposure to cell phones’ radiation are schwannoma type tumors.tumor

The Case

From 1994 to 2010, an airport employee was exposed at his work to high levels of Radio-Frequency and Microwave radiation from a variety of antennas and high-frequency equipment: altitude signal repeaters, weather radars, satellite antennas, and airplane equipment.

In addition, for the purpose of the coordination of tasks which were part of his job in the office, he had to use a lot of Electromagnetic frequencies and radiation emitting devices such as mobile phones, two PCs that were always on, and signal repeaters (GSM and DECT).

Several times the employee and his colleagues reported to the employer that the levels of electromagnetic fields (EMFs) and radiation were high and requested that the EMFs and radiation be measured, but they were ignored.

The employee used a Siemens DECT phone, a Nokia and later a Samsung cell phone for more than four hours a day, with phone sessions of up to 45 minutes consecutively and on the left side of his head. In 2010, he was diagnosed with an acoustic neuroma.

In 2011, the employee was declared to be permanently unfit for work and his disability was determined to be 68%. In 2014, he applied to INAIL (the Italian Center for Occupational Diseases) asking that his tumor be recognized as an Occupational Disease. The employee claimed that there is a casual link between his exposure to radiation in his work and the acoustic neuroma tumor he suffered, and hence his disease should be recognized as an occupational disease.

The CTU, a collaboration of experts and technical advisers assigned to evaluate the case, conducted research into the disease and its risk factors. In reducing the criteria for the causal link assessment, the CTU stated that the worker had been exposed to high-frequency EMR for a considerable number of hours per day for over 10 years.

The CTU concluded that the development of the left auditory nerve neuroma is related to his work. They based their determination on the duration of exposure, the type of devices he used, the type of pathology, and the review of the literature. They determined that the evidence is sufficient for a causal link, even in the absence of clear conclusive scientific evidence.

The CTU also refereed to a similar decision by the Court of Brescia, in which several studies between 2005 and 2009 were quoted. In three of the studies that were quoted, the risk of Neuroma had increased considerably, while according to another study the risk was considered to be low but present.

The CTU concluded that the tumor caused a reduction in the employee’s psycho and physical integrity.

Summary of Previous Italian Court Decisions

First Decision: Brescia Court. December 10, 2009, affirmed by Italy’s Supreme Court on October 12, 2012

The Supreme Court of Italy has affirmed a ruling that granted worker’s compensation to a businessman who developed a tumor after using a cell phone for 12 years. Marcolini, a financial manager at an industrial plant in Brescia in northern Italy, used cell and cordless phones for five-to-six hours a day for 12 years. He was diagnosed as having a benign tumor on the trigeminal nerve, which controls facial muscles and sensations. The court ignored industry funded studies and declared them to be biased and preferred Prof. Lennart Hardel’s expert opinion.

Second Decision: Ivrea Court. March 30, 2017

The Court of Ivrea recognized a causal link between inappropriate use of a mobile phone and a brain tumor. Roberto Romeo, 57, used his mobile for three to four hours of each working day for 15 years. He was diagnosed in 2010. His Acoustic Nerve had to be removed.” A medical expert estimated the damage to Romeo at 23 per cent of his bodily function, prompting the judge to make a compensation award of 500 euros per month to be paid by INAIL, a national insurance program covering workplace accidents. Newsweek mistakenly reported this case as the first decision while it was already the second. 

Third Decision: Florence Court: April 2017

The court ordered Inail (National Institute for Accident Insurance at Work) to compensate a salesperson who developed Acoustic Neuroma. A worker used the phone for 2-3 hours a day for 10 years. The experts opinion was that there is a high probability of connection between cell phone use and malignant tumors. The Court of Florence recognized the connection between the use of the cell phone and the onset of an acute nerve disease.

Links:

PRESS HERE for the Italian Court’s Decision

PRESS HERE for the article in Italy that reported the decision.

PRESS HERE to read more about Acoustic Neuroma and the connection to exposure to wireless radiation on Dr. Joel Moskowitz’s website – SaferEMR.com