Lawsuits

31 December 2021 Appeal: Challenge of October 14, 2021, ruling on a Verizon permit application on the grounds numerous environmental protection mandates have been broken in relation to a federal agency, public charter, state and federal laws.

Attorneys: BBILAN
Plaintiffs: Monica Eisenstecken, David Benedict, Tahoe Stewards LLC, Tahoe for Safer Tech, and Environmental Health Trust
Information and Donations page.

Filed May 27th, 2021 - Notice of Appeal in the Federal Court of Appeals for the Washington DC Circuit concerning the FCC’s ruling to approve a major modification to the world's largest planned satellite network without an environmental impact assessment as required by NEPA, in addition to other concerns.

Attorneys & Plaintiff: BALANCE GROUP - oddly enough, the Balance Group includes an individual with 5G interests!

July 9, 2020 federal brief: ADA, Fair Housing Act (AHA), and Rehab Act request for protection from smart meter on residence as petitioner has an incurable form of cancer. Case is moving forward as request for dismissal denied.

Attorneys: Law Offices of Bruce M. Merrill and the Law Office of William Most
Petitioner: Maine resident Ed Friedman [Note Ed Friedman was involved in previous actions, including with other Maine residents, and involved with MaineCoalitiontoStopSmartMeters.org]
Defendant: Central Maine Power (CMP)

A U.S. diplomat injured at the U.S. embassy in Cuba is now suing the state department for failure to accommodate 'Havana Syndrome' which is essentially the same as sensitivity to wireless.

A blog post is found at wearetheevidence dot org on the subject.

The decision of a lower court allowed consumers to opt out of smart meters, leading to a Supreme Court appeal by utilities.

In response, a brief was filed by Steve Harvey Law LLC attorneys which focuses on the lack of a mandate written into PA law. The brief has been critiqued as poorly written.

The amicus briefs cover more and can be found online under  PAsafetech.org/legal-files with some compelling stories on health - a pro se argument is also made well by the McKnight family. Environmental Health Trust is quite thorough as always. For legal argument the amicus brief by attorneys William Most and Michael Giles is quite good as is the brief filed by Children's Health Defense is also online at https://childrenshealthdefense.org/wp-content/uploads/Brief-and-Addendum-Submitted-9-14.pdf

• Cellphone cases were once halted for a reason that may no longer be valid, which is that cellphones comply with vetted FCC guidelines. Cases able to get through restrictions were consolidated and have lasted years:
  • Attorneys: Ashcraft & Gerel LLP, Morganroth & Morganroth PLLC, Lundy Lundy and Soileau & South LLP
  • Defendants: 46 including Motorola, Nokia, AT&T, Bell Atlantic, Cellular One, Cingular Wireless, SBC Communications, Verizon, Vodafone, the Telecommunications Industry Association, the IEEE, ANSI, the CTIA, and the FCC
• Iphone Safety Lawsuit (Law 360) More cases are moving forward since cellphones exceed FCC guidelines or because FCC guidelines were never properly vetted. Noting that more discovery is needed — including into how the FCC’s guidance should be implemented — the judge denied Apple's motion to dismiss. “The court is inclined to hold that if the Apple products ultimately satisfy the commission’s standard, then all claims must be dismissed on preemption grounds,” he said. “On the other hand, if the products in question do not meet the commission standards, then the court is inclined to let all of the claims go forward.” The proposed class claims that based on Apple's misrepresentations, millions of people purchase their smartphones, carry them around all day and use them up against their skin, without being made aware of the health risks. Plaintiffs initially named Samsung as a defendant but voluntarily dismissed that company from their suit in January. The proposed class is represented by Elizabeth A. Fegan of Fegan Scott LLC and Jennie Lee Anderson of Andrus Anderson LLP. Apple is represented by Jonathan S. Tam, Amisha Rajni Patel, Mark S. Cheffo and Christina Guerola Sarchio of Dechert LLP. The case is Cohen et al. v. Apple Inc. et al., case number 3:19-cv-05322, in the U.S. District Court for the Northern District of California.
• Dafna Tachover, Esq., recently interviewed Hunter Lundy, Esq. on the topic of cellphone litigation at: https://childrenshealthdefense.org/transcripts/webinar-cell-phone-brain-tumor-litigation-legislation-barriers-and-opportunities/
• Another case is described here:  https://childrenshealthdefense.org/defender/lawsuit-telecom-giants-cell-phone-radiation-brain-cancer/

• A  lawsuit to fight the 2018 September ruling by the FCC to allow telecommunications companies to overrule local zoning laws simply based on a statement of (1) need to improve service or (2) need to provide a new service. This ruling was an agency decision, rather than a decision of Congress. Attorney Andrew Campanelli is lead attorney and planning to initiate cases in the DC and 2nd Circuits (CT, NY, VT). This would be an expedited hearing, with a decision in just a few months.
• National Association of Broadcasters on July 24, 2020, appealed the FCC decision to share 6 GHz spectrum
• Video programming provider PSSI Global Services LLC (PSSI) is suing  the FCC for reorganization of the C-band spectrum, stating in its suit: "PSSI has also repeatedly demonstrated the harm that would ensue from the operation of the Flexible 5G licenses in the lower portion of the C-band at those OU locations, both in terms of damage from radiated power, as well as interference to operations of the transportables."

A Sweet Victory!

The 1st Circuit has ruled that the FCC’s wireless guidelines are ‘arbitrary and capricious’ & directed the FCC to respond to submitted complaints and provide its reasoning.

Roasting of the FCC begins in earnest on page 19 of this decision.

However, this case does not set safer guidelines, only chastises and redirects the FCC — the FCC may be slow or insincere in response to the court’s decision.

Attorneys: W. Scott McCollough (argued), Edward B. Myers, Robert F. Kennedy, Jr. [Dafna Tachover also assisted with case and Sharon Buccino of the Natural Resources Defense Council prepared amici briefs]
Petitioners: Environmental Health Trust, Children’s Health Defense,
Further Background: Wireless exposure limits in the USA are set only to prevent heating, despite hundreds of reputable studies showing this is wrong. The FCC refused to update guidelines, despite concerns provided from experts and professional organizations in closed dockets 13-84 and 03-137. The FCC cited as evidence a letter lacking scientific references from Jeffrey Shuren, FDA Director of the Center for Devices and Radiological Health, whose opinions are suspect in part as his wife is an industry lawyer. For this case, Dafna Tachover, Esq., reports that she and Scott Mccullough, Esq., reviewed and compiled all the scientific evidence in docket. Pennyslvania for Safe Technology has neatly provided a downloadable listing online.

2017 Federal Court Decision - Massachusetts Civil No. 4:15-cv-40116-TSH (G, a minor v. The Fay School, Civil No. 4:15-cv-40116-TSH )

Electromagnetic Hypersensitivity Syndrome (“EHS”) was recognized as a valid syndrome in this federal court case. Judge Timothy Hillman found that the now 14-year-old guidelines issued by the Federal Communication Commission (FCC”) do not bar EHS claims. The judge found guidelines only assess amount radiation which would heat up or burn human flesh, and did not address other nonthermal, biological effects of wireless radiation. Dr. David O Carpenter's (General Causation expert) methods and testimony were considered credible, including that nonthermal wireless radiation has biological effects.  The judge also found that doctors medically diagnosing EHS in specific patients have to be careful to isolate that syndrome as the cause because other environmental factors can be the cause. (specific causation).

The MA decision above also established legally that the FCC Guidelines and Telecommunications Act do not preempt or bar claims made by those with EHS brought under the Americans with Disabilities Act.  This decision is consistent with the guidelines issued by the United States Access Board which sets guidelines for how certain disabilities should be accommodated in federal buildings, and by US Social Security Administration, and the Department of Labor, all of which recognize EHS as a disability.

• Alaska Supreme Court upheld 100% workman's compensation for cell tower worker injured neurologically by wireless radiation. Workman's compensation attorney was Steven J. Priddle.
• Microwave News reported on a similar Supreme Court success in a 1982 case Yannon v. New York Telephone.
• JML Law wins appeal before CA Court of Appeal against LAUSD. Brown v. LAUSD (Appeal No. B294240) establishes that symptoms of 'electromagnetic hypersensitivity' could be deemed a 'physical disability' under the California Fair Employment and Housing Act ("FEHA"), which is broader in scope than the ADA. The complete published opinion by the Court of Appeal can be accessed at https://www.courts.ca.gov/opinions/documents/B294240.PDF. For more information, please visit http://www.jmllaw.com. SOURCE: JML Law https://finance.yahoo.com/news/jml-law-wins-appeal-unprecedented-161500982.html Fri, March 26, 2021, 12:15 PM·4 min read
• An older successful receipt of US workman's compensation for brain tumor has been youtube reported for Sharesa Price
  • • Attorney: Carl Hilliard, president of the Wireless Consumers Alliance, in CA
      
    • Medical expert: Dr. Nachman Brautbar, occupational toxicologist and clinical professor of medicine at the University of Southern California School of Medicine

FILED December 20, 2021: Administrative petition to request within 30 days that the HHS & FDA declare lack of safe, vetted guidelines for radiofrequency radiation (which includes wireless communications). Further, demands announcement of resulting imminent hazard, communicating this to public and private entities, and then swiftly adopt new rules to protect public.

Extra: You can still provide a comment on why their guidelines are harmful to you personally and must be updated - see here. Comments are public, but can be signed anonymously.

Action: No action on this petition has been or is expected to be taken. However, the comments provide a record that can be used to prove changes are needed.
Defendant: FDA and HHS (aka US Food and Drug Administration and Dept. of Health  and Human Services)
Attorneys: BALANCE GROUP (Includes BBILAN)
Plaintiffs: Americans for Responsible Technology - ART (although Last Tree Laws is listed as a supporter, LTL and ART are independent), Environmental Health Trust, Consumers for Safe Cell Phone, California Brain Tumor Association, Manhattan Neighbors for Safer Telecommunications, Tahoe Stewards, Sally Jewell Coxe, Robert Strayton

• Sprint removed a school cell tower in Ripon, CA, after 7 people got cancer in a 3-year period, including 4 kids.
• In Mashpee, MA, a trial was set aside for settlement with possibility of relitigation if terms are not met within a specified period of time.
• Please also see the ordinance page if especially interested cell tower placement.

Residents in Pittsfield organized effectively to persuade the board of health that a newly installed cell tower is harmful, after the City Council had also been convinced to require an investigation by the board of health.

A cease and desist order was prepared by attorneys Scott McCullough and Dafna Tachover. This order was expected to give the town influence, especially as the residents around a local cell tower had provided a great deal of evidence of harm in public hearings.

However, when Verizon filed suit the order was withdrawn because the town did not have the tens of thousands to cover the costs of an attorney, as the Pittsfield attorney's office was already engaged and could not assist.

Because this case lacked full legal support, this case was unlikely to win and in fact lost in district court and on appeal. The suit argues that the Telecom Act is unconstitutional, a fair point. However, judges may not even be willing to give a case like this a hearing from lack of understanding or courage.

The petition has been filed and can be found at https://www.supremecourt.gov/DocketPDF/21/21-629/196710-/20211025140205639_Santa%20Fe%20Alliance%20Petition.pdf

Initial documents can be found online at https://www.cellphonetaskforce.org/5g-litigation/

REHEARING BEING CONSIDERED - This is an important case, but the court ruled against our interests in the decision.

The plaintiffs contested FCC rules allowing antennas without attention to state zoning and permitting rules, giving the FCC and federal government powers that never existed before and allowing antennas anywhere without any notice to surrounding abutters.

The FCC allowed this with a rule change that interprets a federal law allowing small, personal receiving antennas for TVs to exist without permits and zoning, and expanding this beyond the meaning of the law to apply to commercial antennas.

The petitioners are considering a request for a rehearing. However, Atty. Dafna Tachover says that a rehearing is unlikely to win, as it rarely does.

In sum, the court appears to have wimped out on taking action because of the enormous impact this would have on infrastructure in the United States, and instead refers the petitioners to work with the FCC.

Attorneys: Robert F. Kennedy, W. Scott McCollough, Dafna Tachover
Petitioners: Children's Health Defense, Dr. Erica Elliot, Ginger Kesler, Angela Tsiang, Jonathan Mirin
Filings: https://childrenshealthdefense.org/known-culprits/electromagnetic-fields-wireless-technologies/stopping-otard/chd-v-fcc-stopping-otard-lawsuit/
Donations: If you disagree with CHD's vaccination stance, note you can donate exclusively to this court case or this issue. Please also see childrenshealthdefense.org for updates.

• Completed relevant court opinions can be found at the FCC
• California Supreme Court affirms local authority to regulate wireless infrastructure. T-Mobile West LLC v. City & County of San Francisco,  April 4, 2019, Docket Number: S238001.
• US DC Court of Appeals: The Court vacated the FCC decision to bypass environmental and historic reviews. Case 18-1129 actually means all applications must include an environmental assessment (or certify that it is not needed), even the 23 states that passed a bad ALEC-written bill - the FCC lost. Various tribal and environmental groups, such as the National Resource Defense Council, put forward briefs. We have intervenor Edward B. Myers to thank. His brief was recognized by the DC Circuit judges in their final ruling.  Of course, assessment can also be completed by locals/ the town & controversy sent to the FCC.
• DC:  Oct 1, 2019, the DC Circuit Court of Appeals ruled in Case 18-1051: the ruling means the FCC no longer regulates the Internet (web pages, video/music streaming, online gaming and other information services). Therefore, Big Wireless has zero preemption to install or operate personal wireless facilities that emit wireless "information services" transmissions in the USA. This also means that the Wireless Industry only has preemption to place, construct and modify personal wireless facilities for wirelessly transmitting "telecommunications services" (i.e. voice transmissions.
• CA 9th Circuit: This case arguing the FCC exceeded its authority rolling out 5G - has concluded that: (1) cities may establish aesthetic requirements that are  not just "objective" and that may differ depending on zoning and facilities so long as not discriminatory (2) small cell safer harbor fees remain $500 and for recurring fees $297, but may be billed if higher (3) shot clocks set by the FCC only create "presumptions" and if more time is needed a municipality can protect itself by proving more time is needed (4) cities cannot charge more or demand more for rights-of-way usage (5) utilities cannot charge more for use of poles (6) moratoria are permitted for emergencies and construction may be rescheduled to prevent construction during freeze and frost periods (7) has more decisions restricting utility wishes (see last section). Consolidated Case Nos. 19-70123, 19-70124, 19-70125, 19-70136, 19-70144, 19-70145, 19-70146, 19-70147, 19-70326, 19-70339, 19-70341, and 19-70344 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Sprint Corporation, Petitioner, v. City of Bowie, Maryland, et al., Intervenors, v. Federal Communications Commission and United States of America Respondents [Case 19-70123, ID 11333654]. See Montgomery County, MD, for copies of filings.
• CA 9th Circuit - November 2018 American Electric Power Service Corporation files petition against FCC over new rules to speed up 5G & Fiber, concerned about lack of zoning permits, limits on fees, and shot clocks, saying: "The Federal Communications Commission does not have legal authority to regulate public power pole attachments due the the clear public power exemption from federal pole attachment regulations set forth in section 224 of the Communications Act, the American Public Power Association said in a recent court brief." The AEPS notes in the brief that for over forty years, the FCC, Congress, and the courts have repeatedly recognized that the FCC does not have regulatory authority over the rates, terms, and conditions of access to public power utility poles. The following month, the AEPS and 133 public power utilities and associations on March 1 sent a letter to Rep. Anna Eshoo, D-Calif., supporting legislation she introduced that would overturn actions by the FCC to regulate public power pole attachments.
• CELLPHONE ORDINANCE STAY: US District 9: After a decade fighting for the right to an ordinance for consumer cell phone warning that mimicked fine print of telcommunication manual's warning, Berkeley settled after U.S. District Judge Chen said the ordinance amounted to overwarning. Berkeley will hold the ordinance until a better FCC exists. Learn about the Berkeley Right to Know (cell phone risks) ordinance and case online at SaferEMR, as described at a blog by Dr. Joel Moskowitz, who is director at the Center for Family and Community Health School of Public Health  at the U of CA, Berkeley.
• Cities have regularly been fighting FCC rules lately, such as FCC  19-250, RM-11849, and 20-75 as these limit fees, application review, zoning restrictions, and allow cell tower infrastructure to grow without limits or review. .