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A group of committed and concerned citizens including doctors, scientists, and engineers throughout the United Kingdom have come together to bring a lawsuit against their government for its failure to protect the health of the country’s citizens, particularly children, from 5G and wireless. The Claimants filed their lawsuit, an application for Judicial Review Proceedings, in the UK’s High Court.

The organization they have formed, Legal Action Against 5G, claims that the government has refused to acknowledge, or even study, the potential harms of 5G infrastructure and allowed and promoted its deployment unlawfully. On their website they wrote:“Our case against the UK government is that due process is not being followed, that the risks are being entirely disregarded. This is a national public health issue.”  Among other things, the group is calling for a moratorium on the rollout of 5G.

The defendants in the case are the UK Secretary of State for Health and Social Care; the Secretary of State for the Environment, Food and Rural Affairs; and the Secretary of State for Digital Culture Media and Sport. The named claimants (plaintiffs) in the case include Victoria Angell and Karen Churchill, who live or frequent areas where 5G has already been implemented and “whose health is put at risk by 5G.”

One of the UK’s most prominent barristers, Michael Mansfield QC., is leading the legal team representing the claimants. Mansfield is well known in the UK and has led many notable cases. He was named by the UK’s The Legal 500 (an organization which identifies and ranks top legal practitioners internationally) as “the king of human rights work.” He is joined in the case by Philip Rule and Lorna Hackett of Hackett & Dabbs

The Claimants’ lawsuit asserts that the government’s actions violate the European Convention on Human Rights and therefore is in violation of section 6 of the UK’s Human Rights Act 1998 which makes it unlawful for a public authority to violate a right guaranteed by a convention. The claimants quote violation of Article 2 of the Convention which protects the right to life, Article 3 which prohibits torture and Article 8 which protects the right for privacy.

The lawsuit emphasises the Defendants’ failure to protect the population, especially children. It claims that the UK government has failed to consider the best interests of children when considering formulating, updating or reviewing the appropriate approach to 5G policy and risk assessment for exposed children, or at least, have failed to make this a primary consideration. 

The lawsuit also claims that the Defendants are in breach of the Public Sector Equality Duty (s149 Equality Act 2010) because the government failed to assess the risks posed by RF radiation and consider them in its decision regarding 5G deployment when it decided to adopt the International Commission on Non-Ionizing Radiation Protection (ICNIRP) recommended guidelines. 

ICNIRP is a private organization that publishes recommendations for exposure levels to electromagnetic fields (EMFs) including for Radio Frequency (RF) Radiation which is the radiation emitted by wireless technology. ICNIRP’s recommended guidelines acknowledge only harms caused by thermal levels of RF radiation, and despite ample evidence, deny non-thermal harms. Since wireless technology emits for the most part non-thermal levels, according to ICNIRP, wireless is safe. There is a growing outcry worldwide against ICNIRP. Evidence shows that ICNIRP and its members have strong ties to the telecommunications industry and clear conflicts of interests, and therefore its guidelines are biased and false. Nevertheless, many governments, including the UK, have adopted these outmoded, unsafe levels. 

According to the lawsuit, the adoption of ICNIRP guidelines is in breach of the government’s  statutory duty under the National Health Service Act 2006. The adoption of ICNIRP guidelines is (a) [an] unlawful delegation or abdication of the statutory function to an external private organisation; and/or (b) irrationally failing to take appropriate steps under this power and/or failing to exercise a discretion in accordance with the statutory purpose. 

The Claimants allege that the Defendants have failed to take into account, and give due and proper consideration to, all the evidence, information and concerns which the claimants raised with them. The Defendants have failed to provide adequate and sufficient reasons for the decision not to establish a process to investigate and establish the adverse health effects and risks of adverse health effects from 5G technology and/or for discounted the risks presented by the evidence available. 

Before initiating the court action, in May of 2020, Hackett & Dabbs issued a Letter Before Action to Public Health England. The letter included a report about the problems surrounding UK health policy regarding RF Radiation and 5G written by Prof. Tom Butler, University College Cork in Ireland. (A Letter Before Action is the first step in seeking Judicial Review in the British court system).

The Letter claims that the government has “failed to take into account the evidence showing a high risk to human health from 5G;  failed to bring about a full and independent assessment of the risks to human health; failed to put in safeguards to effectively protect the public from those risks; failed to provide effective information to the public about those risks.”

Prof. Butler’s report goes into significant detail on the inadequacy of ICNIRP’s standards, its conflicts of interest and the politics involved.  He states: “The majority of independent scientists consider… ICNIRP… as ‘captured’… heavily influenced by industry-funded researchers and industry itself.” The Italian Supreme Court in 2012 and the appellate court of Turin in 2020, reached similar conclusions.

Prof. Butler’s involvement with the issue of wireless harms became known in 2020 following his complaint to the Irish Office of the Press Ombudsman for the Press Council of Ireland. The Ombudsman decided that the New Times article “The 5G Health Hazard That Isn’t written by William Broad (which was reprinted by the Irish Times as Are there any real links between wireless technology and health?), violated the truth and accuracy code of practice of the Press Council of Ireland.

The attorneys’ letter also enumerates the many harms shown to be caused by RFR, including increased risk of various cancers, DNA damage, neurodegenerative diseases, particular risks to children (including unborn children), Electroensitivity (Microwave Sickness) , and risks to plants and animals.

To redress these failings, the letter requested that the government: impose a moratorium on 5G pending research into its health risks; conduct a full assessment of the risks of the intended use of 5G; abolish the policy that 5G technology only need conform to ICNIRP’s (inadequate) standards; create new guidelines that will include safeguards to protect the public’s health; and publish information about the evidence of 5G harms and what steps the public can take to protect themselves. 

Since the submission of the letter in May 2020 the Claimants have continued to provide the government with evidence of harm. The case has become personal for the attorneys, when one of the attorneys and her assistant went to visit the home of a woman in London who had become ill after antenna masts had been installed near her property. They spent approximately two and a half hours at the property, mainly in the garden, when the assistant’s skin on her  neck and chest became red. These skin reactions have subsequently been identified as burns from antenna masts’ radiation. Since that day, the assistant has become electrosensitive and is now on an extended leave. 

As a result of this development, in Dec of 2020, the legal team wrote that in the time that passed since their letter to the government: “We have qualitatively moved from the threat of risk without proper assessment to the discovery by the claimants of actual damage being caused with every minute that goes by and a blatant failure by Government to recognize or respond to this by word or deed.”

As a result of the government ministers’ continuous disregard of the evidence presented, on March 22, 2021 the lawsuit was filed. Legal Action Against 5G keeps the public apprised of developments in the case on its website.  

While three people are named specifically in the lawsuit, Legal Action Against 5G acknowledges that their far-reaching case in essence represents everyone. “We represent all people in the United Kingdom because we have not been consulted, nor have we consented to the irradiation of our homes, our towns or our countryside… We are taking this action on behalf of citizens of the UK but also the global family.”

On April 13, Italian activists started a hunger strike to protest the intention of the Italian government to increase the permitted radiation exposure levels for the purpose of enabling 5G deployment. 

Over 100 people have joined the hunger strike including a member of the Italian Parliament. The initiative has been promoted by the Italian Stop 5G Alliance and is supported by a petition signed by over 62,000 people. 

The increase of the allowed exposure limits was introduced as part of a 40 billion euro Covid recovery plan bill and intends to increase the allowed exposure limits by 10 fold, from 6 V / m up to 61 V / m. The recovery plan also included 6 billion euros towards the deployment of 5G. 

On April 27, the Chambers of Deputies, which is the lower house of the Italian Parliament voted to approve the recovery plan bill. However, the version that was voted on had been amended and didn’t include the increase in exposure levels. On April 28 the second house of the Parliament, the Senate of the Republic, voted on the amended bill. For now, the exposure levels are not increased and the protesters who won this battle will terminate their hunger strike on 4/30.  The 6 billion euros towards 5G did pass as part of the recovery plan bill. 

The current Italian exposure levels are approximately 100 times lower than the US levels. Italy and many other countries around the world have significantly lower permitted radiation exposure levels than the US. However, these levels are still well above levels found by thousands of studies to cause adverse health effects. 

A large part of the infrastructure required for 5G relies on a massive deployment of called “small cell” antennas. The name of these antennas is misleading. While they may be smaller in size than the large cell towers, they are nevertheless very powerful because they are lower in height and because of their proximity to people’s homes and to the public rights of way, they in fact increase the exposure levels. It is likely for that reason the telecommunications industry has lobbied to increase the allowed radiation levels. The inconsistency between the industry statements that 5G small cells reduce radiation exposure while at the same time they lobbied to increase the allowed exposure levels led the environmental minister of Brussels, Belgium in 2019 to halt the deployment of 5G.

The Stop 5G movement in Italy has been at the forefront of the worldwide effort. A record 600 municipalities have passed resolutions calling to halt the deployment of 5G. 

The Italian alliance also organized a 3-day Stop 5G Telethon that took place on March 5-7, 2021 and was screened on Italy La Casa del Sole TV featuring many speakers and experts. 

The Italian courts are also the first in the world to rule that cell phones cause brain tumors. Thus far, the Italian courts have ruled in four cases that the plaintiffs’ acoustic neuroma brain tumors were caused by their cell phones. The first case was decided by the Italian Supreme Court in 2012 and most recently, in 2020, in a decision by an Italian appellate court. 

Both the Italian Supreme Court and the Appellate courts’ decisions heavily criticized the International Commission on Non-Ionizing Radiation Protection (ICNIRP), a private organization that has been endorsed by the World Health Organization (WHO) EMF Project. ICNIRP recommended health guidelines for wireless radiation exposure which essentially deny harms. Their guidelines have been adopted by many countries around the world.

These courts held that ICNIRP and its members are biased and their opinions lack credibility due to industry connections and funding. The Italian Supreme Court concluded that experts with ICNIRP affiliations “lacked credibility and authority, and as such, were essentially outside the scientific community.” An Italian Court of Appeals decision expressed even stronger opinions regarding ICNIRP and its members. The courts relied to a large extent on evidence provided by Prof. Lennart Hardell, MD PhD who is one of the world leading experts on cancer and wireless radiation. 

Italy’s renowned research institute, the Ramazzini Institute, 6 million euro study published in 2018 has shown that wireless radiation can cause cancer. 

The study confirmed the results of the US government National Toxicology Program (NTP) study that found clear evidence of cancer and DNA damage. 

The Ramazzini study results are particularly relevant to 5G infrastructure because while the NTP study used levels of radiation that resemble those emitted by cell phones, the Ramazzini study used levels of radiation which are up to 6,000 times lower, which resemble levels of radiation from cell towers.

These studies are especially important because when the WHO’s International Agency for Research on Cancer (IARC) in 2011 classified radio frequency radiation (the radiation emitted by cell phones and wireless technology, including 5G) as a 2B possible carcinogen, the agency explained that while there is epidemiological evidence that this radiation increases cancer risk, more animal studies were needed for a higher classification.

The Ramazzini Institute study and the NTP study provide the missing link for a classification of a “human carcinogen” (Group 1) or at least a “potential carcinogen” (Group 2A) classification.

These studies likely led to a decision by IARC in 2019 to reevaluate the classification of RF emissions. The agency stated that as a result of “new bioassay and mechanistic evidence,” re-evaluation is warranted. IARC’s decision is expected by 2024. 

A member of the Italian parliament, Sara Cunial joined the hunger strike and protested the adoption of increased exposure levels in Parliament. In her address to the Italian Parliament on April 13, she said: “Today you have once again betrayed the promise made to the Italian people to truly protect their health, favoring the government in its intent to raise the electromagnetic emissions limits…You continued to undermine the concerns of over 600 mayors who oppose the 5G experimentation. This order comes directly from ICNIRP, even though the Italian Courts found it to suffer from conflicts of interest and stated that it ignores the well-documented chronic and severe biological effects, and while IARC is reevaluating the carcinogenic effects of radio-frequencies. ” 

She accused the Minister for Technological Innovation and Digital Transition, Vittorio Colao, who used to work for Vodafone Italy, of conflict of interests. 

MP Cunial mentioned the case brought by Robert F. Kennedy Jr. and the Children’s Health Defense that challenges the U.S. Federal Communications Commission (FCC) health guidelines. The FCC’s guidelines are similar to those recommended by ICNIRP. In this case, the FCC hides behind ICNIRP to justify its decision not to review its 1996 guidelines claiming there is no evidence of harm that warrant a change to the guidelines. To counter the FCC’s argument, the Petitioners in the case filed 11,000 pages of evidence of harm.  

In her address MP Cunial announced that she is joining the hunger strike which she explained is a civilian protest to oppose Parliament’s “wicked ways and its reliance on anti-scientific studies devoted to the sacrifice of human life.”  She concluded by saying to the members of parliament “how intolerable and outrageous are your excuses and lies.”

On April 30, the legislation will be sent to the European Parliament.

Kihei Baptist Chapel, in collaboration with Verizon, had applied for a special use permit to build a 50-foot cell tower  in a residential area in Maui, Hawaii. The cell tower was planned to be erected near the church which has pre-school on its property. They planned to hide it as a pine tree. Pastor Jay Amstrong and Debra Green have led a campaign against the planned cell tower and as the advocates wrote: “thankfully sanity prevailed.” On June 30, 2020 the mayor sent an email that the application was denied. 

Please say “Thank You” to the Pastor for doing the right thing: Email your words of gratitude to: Pastor Jay Armstrong jayarmstrong@hawaii.rr.com, or Call the Church and leave a message of appreciation: 808-875-2112

This is the email that was sent from the Mayor’s Office:

From: Mayors Office <Mayors.Office@co.maui.hi.us>
Date: Tuesday, June 30, 2020 at 8:42 AM
Subject: Re: NEW 5G CELL TOWER FOR KIHEI!!

,

Aloha,

Verizon and the Kihei Baptist Church have withdrawn their application for a permit in this matter.

Thank you,

Brian Perry
Director of Communications
Office of the Mayor

Professor Tom Butler published another review on the science on RF radiation health effects this review is focusedd on 5G: “Review of the Health Risks of Radiofrequency Radiation Employed in 5G Technology and the Implications for UK Policy-making.” 

Prof. Butker writes that the aim of this review is to provide a critical review of the findings on the health risks posed by 5G technologies. It also provides evidence that the processes by which policy decisions
have been made concerning the protection of public health may be significantly flawed, as the “overwhelming
body of scientific evidence appears to have been ignored by relevant government departments and agencies in
arriving at decisions about the introduction of 5G”. His conclusion is that the UK government  “failed in its duty to identify, assess, and mitigate the risks posed by RFR-based technologies” and in its duty to protect public health. 

Another article was recently published by Prof. Butler – a meta-analysis scientific review “On the Clear Evidence of the Risks to Children from Smartphone and WiFi Radio Frequency Radiation“. 

Recently, as a result of Prof. Butler complaint against New-York Times, the Irish Press ombudsman rebuked the Times for its false and misleading reports on 5G safety in violation of Ireland’s Truth and Accuracy in Journalism Standards. Children’s Health Defense submitted a case against the FCC for its failure to regulate guidelines that are protective of public health and especially children – Among the petitioners are parents of children who have been injured by cell phones, wi-fi in schools and cell towers. Read more about Children’s Health Defense v. FCC. Our brief is due in court on July 1st. 

From Margreet van den Berg from Stop5GNL

5G COURT DECISION IN THE NETHERLANDS TODAY
The Dutch State can continue the auction of 5G frequencies.

The judge: “There is difference in opinions whether 5G is safe for health. And you have to realize that a judge in an interim injunction (“kort geding”) cannot weigh the value of the different views in a scientific debate very well. I think that speaks for itself. ” (at 6 minutes into the video)

HIS CONCLUSION:

“On the basis of all the above, IT CANNOT BE CONCLUDED THAT THE STATE IS ACTING UNLAWFULLY by auctioning the frequencies in the intended manner. The claims aimed at preventing those auctions will therefore be rejected. “

———————————————————————————

TRANSLATED:

The future and conclusion
4.35.
There is no question that total exposure to electromagnetic fields (the sum of the use of multiple applications) in any location where people are present must remain below the limits which are intended to safeguard public health. Stop5GNL has rightly argued that at present it is not clear exactly how 5G systems and the field strengths they cause will develop.

For that reason, the Netherlands Radiocommunications Agency will continue to monitor the field strengths in various ways, the State explained. Although, according to the State, for various reasons, the exposure guidelines are not expected to be exceeded after the roll-out of 5G, the State has explicitly stated that it can and will intervene if future measurements by the Radiocommunications Agency show that the ICNIRP GUIDELINES are or will be exceeded.

In addition, the State has indicated that it will also INTERVENE IF NEW INSIGHTS SHOW that the exposure limits need to be adjusted; when it therefore appears that there are still health risks in the event of exposure to electromagnetic waves below the LIMITS THAT ARE CURRENTLY CONSIDERED SAFE .

At that time, intervention by the State will also be required and the State has stated that it will be able to do so at all times. In view of this, the roll-out of 5G is not irreversible.
UNDER THESE CIRCUMSTANCES THERE IS NO REASON FOR INTERVENTION BY THE INTERIM INJUNCTION JUDGE.

4.36.
On the basis of all the above, IT CANNOT BE CONCLUDED THAT THE STATE IS ACTING UNLAWFULLY by auctioning the frequencies in the intended manner. The claims aimed at preventing those auctions will therefore be rejected. Stop5GNL, as the unsuccessful party, will be ordered to pay the costs of these proceedings.

https://uitspraken.rechtspraak.nl/inziendocument…

https://www.rechtspraak.nl/…/Staat-kan-doorgaan-met-de-veil…
———————————————————————-
ICNIRP

The judge trusts the conclusions of ICNIRP.
Translation:

“4.25.

Stop5GNL’s thesis that the ICNIRP guidelines are obsolete has been SUPERSEDED superseded by its update in March 2020. After all, in that update the guidelines were confirmed on the basis of current insights. Stop5GNL’s argument that ICNIRP erroneously limited its research to short-term thermal effects (warm-up damage) of electromagnetic fields is invalidated by the documentation of those guidelines.
Stop5GNL has argued that ICNIRP’s observations about possible health effects other than warming damage are a ‘paper reality’, but it follows from Appendix B of the new guidelines that the guidelines are based on scientific research into all kinds of conceivable health effects of electromagnetic fields, including non-thermal health effects. In the second part of the new guidelines, literature is dealt with thematically, per (possible) disorder.

It can be deduced from this that ICNIRP has ASSESSED ALL the (possible) effects of exposure to electromagnetic fields discussed in the literature, and not just the health risks due to warming.

THE COURT in preliminary relief proceedings CANNOT TAKE THE PLACE OF SCIENTISTS and has no reason to doubt that the research actually took place. ICNIRP concluded that possible health damage other than that caused by warming (also in the long term) has not been demonstrated. The fact that the limits have been set on the basis of ‘short-term, immediate health effects’ follows logically from this ICNIRP conclusion.”

——————————————————————————
FIELD STRENGTH MEASUREMENTS

4.27

Stop5GNL wrongly assumes that field strength measur

Professor Butler’s meta-analysis scientific review “On the Clear Evidence of the Risks to Children from Smartphone and WiFi Radio Frequency Radiation“, leaves no doubt – cell phones and Wi-Fi are very harmful to children. Any doubt is a manufactured doubt by Big-Telecom just as Big Tobacco created doubt about cigarettes and purposely hooked our children. Big Telecom has been knowingly misleading the public to believe wireless is safe and it is able to do it because of its control of regulatory agencies and the media. Recently, as a result of Prof. Butler complaint against New-York Times, the Irish Press ombudsman rebuked the Times for its false and misleading reports on 5G safety in violation of Ireland’s Truth and Accuracy in Journalism Standards. Children’s Health Defense submitted a case against the FCC for its failure to regulate guidelines that are protective of public health and especially children – Among the petitioners are parents of children who have been injured by cell phones, wi-fi in schools and cell towers. Read more about Children’s Health Defense v. FCC. Our brief is due in court on July 1st. 

The Children’s Health Defense recently published a guide on how to hard-wired your devices to prevent harm to you and your children from the Microwave radiation emitted by wireless devices : How to Make Remote Learning Safe for Your Children During COVID-19 Quarantine

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).