https://twoday.net/static/omega/files/cellular_phone_industry_just_as_health.htm
https://twoday.net/static/omega/files/the_cell_phone_industry.htm


In Dr. Mercola's article, he claims knowledge which he seems not able to apply. Whereas I agree that cell phones are harmful and that they should be forbidden at least to children, bad science doesn't help advance this point of view.

Specifically, at https://twoday.net/static/omega/files/cellular_phone_industry_just_as_health.htm

Dr. Mercola writes,

"I previously advised complete abstinence from cell phones, but now I recommend cautious use to reduce your risk of damage. If you ever took physics there is a good chance that you understand that radiation decreases exponentially as you move away from an object... "

Anyone who understood even first-year physics knows that the average field intensity (the power transfer) declines as the INVERSE SQUARE of the distance. The field amplitude decreases INVERSELY with distance.

The intensity decrease with distance can be less than the inverse square, for example in a forward lobe of a directional transmitter, but it cannot be greater, and it certainly cannot be inverse exponential.

Unlike Dr. Mercola, I advocate complete "abstinance" from digital RF in the 0.3 GHz - 300 GHz range. Which is to say, I think people should be completely protected from radiation of this kind. They should be exposed only with foreknowledge and positive agreement.

If Dr. Mercola's recommendations depend on his physics, they should be accepted only with great circumspection.

John Michael Williams



The cell phone industry: Big Tobacco 2.0?
http://omega.twoday.net/stories/663789/

Antennas removed
http://omega.twoday.net/stories/591348/

Firefly phone targets tweens, their parents
http://omega.twoday.net/stories/591341/

New York Daily News

Antennas removed
http://www.nydailynews.com/boroughs/v-pfriendly/story/292436p-250364c.html

BY DONALD BERTRAND
DAILY NEWS STAFF WRITER
Wednesday, March 23rd, 2005

Calling it a "huge victory for our children," an Astoria councilman announced yesterday that a cell phone company has agreed to remove four antennas from a building across the street from a local elementary school.

Councilman Peter Vallone (D-Astoria), other elected officials and the community have been protesting the antennas across from Public School 122 at the corner of Ditmars Blvd. and 21st St. since they were installed by Nextel Communications in October.

Nextel spokeswoman Diane Rainey said the four antennas were removed Friday. At the same time, eight other antennas on the building were activated.

"None of those face the school or are even pointed toward the school," said Rainey.

"We felt we did our best. This was the best solution we could find to address the concerns of the community but at the same time retain some kind of effectiveness at that cell site so that we can continue to serve our business and public safety customers in that area."

Vallone said getting the four antennas removed was a "first step, but we must continue to fight to remove all towers from this location and the unregulated placement of towers throughout the city."

In addition to removing the four towers directly facing the school, Nextel agreed to reconfigure the remaining towers so they blend inconspicuously with the architecture of the building and the neighborhood. The firm also will conduct a live radio frequency emissions study on a semiannual basis to ensure that the towers have no health effects on the surrounding community, the councilman said.

Vallone, Assemblyman Michael Gianaris (D-Astoria) and state Sen. George Onorato (D-Astoria) have been fighting to have the towers removed since they were erected. The legislators organized a rally in November, attracting more than 100 concerned parents and teachers, and had threatened Nextel with boycotts and legal action.

A City Council resolution sponsored by Vallone asserts that many questions regarding potential long-term health risks have not been adequately resolved, and must be studied by the city before proper and complete assessments can be made regarding the placement of cell phone base stations where residents live and work. It was unanimously passed by the Council on March 9.

Intro 149, also sponsored by Vallone, was recently voted out of the Council's Buildings Committee and requires the city buildings commissioner to maintain a list of permits issued for all antennas.

Currently, the city does not keep track of tower locations. Intro 49 is expected to be voted on and passed by the full Council today.

"I don't want this to be the same situation we had with lead paint and asbestos, where everyone assumed they were safe and then we found out years later that they weren't," Vallone said

RCR Wireless News


Janet Newton, President
The EMR Policy Institute, P.O. Box 117, Marshfield VT 05658
Tel: (802) 426-3035 FAX: (802) 426-3030
Web Site: http://www.emrpolicy.org

http://www.rcrnews.com/article.cms?articleId=47901

by Mike Dano

Mar 11, 2005

As penetration rates soar in the United States and elsewhere, wireless players are looking for new areas of the market to push their wares. In some cases that involves super-cheap phones and prepaid service. In other areas, it means specialized branding like phones and service from ESPN. And for a handful of companies, it involves selling phones to children.

Founded three years ago, startup Firefly Mobile Inc. launched its Firefly phone for 8- to 12-year-olds. Rather than modifying an aging handset model from Nokia Corp. or Motorola Inc. for their purposes, Firefly's executives designed the device from the ground up to appeal to both kids and parents. The goal is to give parents a way to check up on their kids-"I'll pick you up from soccer practice in 15 minutes"-as well as to give kids a useful and desirable new toy-"look what I got!"
continued below

"Why aren't parents buying cell phones (for their children)? They're such practical tools," said Fred Bullock, Firefly's chief marketing officer. Bullock, along with other Firefly execs, hails from Apple Computer Corp., a company often lauded for its designs. "It's a huge untapped market."

Firefly's phone replaces the standard 10-key phone layout with five buttons that can directly dial a child's mom or dad (the mom button features a homely stick figure with a dress) as well as an optional 20 additional pre-selected numbers. The tiny phone also features a dedicated button for 911 emergency calls. Parents will be able to control the use of the phone; for instance, they can ensure the phone will receive calls from only a select set of numbers. The phone is about twice the size of a cigarette lighter, weights 2 ounces and is built by Solectron Corp.

For kids, the phone features a set of blinking lights and glowing keys "just like a real firefly," Bullock said. Kids can also choose from among 20 Disney-esque ringtones and can switch out the colored plastic covers. Firefly is even selling a mesh pouch for boys and a "wristlet" purse for girls.

"It was also very important to make a phone that kids would like and want," Bullock said.

Interestingly, Firefly evades the wireless industry's constant high-tech cravings with a phone that does nothing beyond placing and receiving calls. Parents won't have to worry about their children sending 100 text messages a day, downloading the latest 50 Cent ringtone or visiting one of a growing number of WAP porn sites.

"It's also designed to appeal to parents," Bullock said. "We're actually launching a new category of phone."

Firefly said market statistics point to a major opportunity. The company said there are 20 million 8- to 12-year-olds in the United States, and only 10 percent have mobile phones. Similar research from the World Wireless Forum shows that there were 190,000 children under the age of 10 in the United States who owned mobile phones at the end of last year, and that number is expected to double this year. For children aged 10 to 14, 5.5 million owned mobile phones last year and that number should increase by 2 million this year. The World Wireless Forum's new report also shows that children under 10 spend 12 percent of their pocket money on mobile-related products and services. Similar research from the NPD Group backs up that figure-the firm found that youth between 13 and 17 years old spent 10 percent less money in the past year on clothing, making up for that with an increase in spending on mobile phones.

Firefly is selling its device with prepaid service through Triton PCS/Suncom and soon plans to sell it through Cincinnati Bell's wireless arm. Triton is offering the phone for $200 with 1,200 prepaid minutes. Firefly also will sell the phone through its own Web site starting in May for $100 with 30 prepaid minutes, as well as through Target stores starting this summer under an exclusive arrangement with the retailer. The company will sell wireless service under a mobile virtual network operator arrangement with Cingular Wireless L.L.C., although Bullock said Firefly doesn't consider itself an MVNO.

Firefly plans to run its own advertising campaign to promote the phone, although Bullock declined to say how much money the company would spend on the effort.

Bullock said Firefly is working to expand the number of carriers selling the device. The company also is planning to upgrade its Firefly technology. The current version of the phone works on GSM 850 MHz, while a future version will work on GSM 900 MHz and CDMA networks. Firefly counts around 20 employees and is privately funded. Bullock declined to give funding specifics.

Firefly is not alone in marketing wireless services to children. Toy maker Hasbro said in February it is working on a phone using two-way radio technology for children ages 11 to 14. Wherify Wireless Inc. sells its Wherifone G550 device to parents and children, a gadget that supports voice calls and global positioning system location functions. Finally, SAMSys Technologies Inc. is teaming with SafeTzone Technologies to develop a family locator system working through radio frequency identification technology. The system will be installed in venues including Steamboat Ski and Resort in Colorado and Dollywood's Splash Country in Tennessee.


Janet Newton, President
The EMR Policy Institute, P.O. Box 117, Marshfield VT 05658
Tel: (802) 426-3035 FAX: (802) 426-3030
Web Site: http://www.emrpolicy.org

I am writing in hopes of finding some answers about cell towers. From what I have read I am a nervous wreck that my kids are going to get cancer if we are too close. What is too close? I've read some articles talking of 300 meters. I know that 1600 meters are in a mile. I have cell towers that are said to be 1/2 mile from our home. There are several around. We are moving. Not because of the cell towers. Since I have become aware of their possible danger I would like to be as far away as possible. There is not an area that we can resonably move to that does not have cell towers in this distance and they are all that distance from the possible schools that my child would go to. How far out do you have to be to stop seeing the increased cancer rates? What do you think of 'parabolic antennae '(sp) from my discription, the FCC says that that is what one of the towers is that would be 1/2 mile from one of the schools. Also, do you know if I can get something to measure radiation myself.

Thanks for any info.

Lisa

http://www.gooletoday.co.uk/ViewArticle2.aspx?SectionID=766&ArticleID=973424


Informant: Sylvie

Mar 24 2005

Ormskirk Advertiser

ORANGE have had their third application in a year for a mobile phone mast in Scarisbrick rejected amid fears of public health risks.

But the official reason for the council's decision is that it spoils the Green Belt.

Government planning rules mean that health and safety cannot be taken into account when deciding planning applications.

Scarisbrick resident Ian Masheder spoke at a planning meeting, opposing Orange's plans to install the 6m flagpole antenna on Mill Brow waterworks, yards from his home.

Speaking of the increasing concerns over public health risks posed by mobile phone masts, he said: "I live in Mill Brow cottage with my wife and four children. My wife and myself feel we will be used as human guinea pigs.

Exposure to microwaves could be a danger to our health."

This prompted members of the committee to talk about public safety risks, be they real or imagined.

Scarisbrick Cllr Margaret Edwards said: "Until they can give a categoric assurance that there is no health risk we should not allow any application where there are residents."

Cllr Terry Rice said: "The more we get to know the more we know that experts get it wrong.

"Remember, we are not just here as members of the planning committee but as councillors representing the public."

Although a representative for Orange was expected to speak at the meeting nobody attended.


From Mast Network

The Court of Appeals of Richmond, Virginia, has decided these last days to retake different judicial causes, that had like object demands against Motorola, Nokia and twelve companies more of telecommunications. The Court of Appeal has shaped in his resolution an incontestable censorship to the practices of those, before giving back to the corresponding courts the judgments that will have to be transacted. It insists on considering guilty to the companies of "... not warning of the risk of contracting diseases as cancer by the use of these apparatuses ", informed Bloomberg. (Five Days - Madrid 18/03/05). It seems to be that, in clear parallelism which takes control today anywhere in the world of the tobacco, it is not far the day in which in the U.S.A. the mobile telephones, wireless and the Wi-Fi computers will come surrounded with the warnings: "MOBILE TELEPHONE CAN CAUSE to CANCER" "MOBILE TELEPHONE DOES NOT HAVE TO BE USED BY the PREGNANT WOMEN" "MOBILE TELEPHONE CAN SUPPOSE RISK OF OCULAR CANCER" * and as Paul Sagawa, analyst of Stanford C. Bernstein & Co says to us: "The key of this subject is that the industry of the mobile telephony does not want that each cancer of brain that is taken place in the U.S.A. turns a demand that demands ten million dollars to the sector". Two questions assault to us: We will also surround with cellophane all the antennas that watch and threaten us from the next tile roofs? Or will we charge the operators to do it, placing, with mold letters, warning posters, so that nobody says soon, that they had not be warned?

Agustín Garci'a Andrés Licensed in Right and Lawyer in Political Sciences L'Escala, 21 of March of the 2005 *

The Institute of Ophtalmology in the University of Essen (Germany) has demonstrated that the use of the mobile telephone can be a leading factor of ocular cancer, melanoma intraocular of the uveal tract (structure that rainbow includes), ciliary body and coroides.


Version print in “Computer science”

Judicial the mobile telephony undergoes his first crossed legal Light Fernandez/Ines Madrid April (18-03-2005) Published in: Printed edition

Companies First were the tobacco, soon the food sweepings and now it seems that it touches the mobile telephony, that becomes at the end the new target of the collective demands in EE UU. A court has given back at the present time the controversy about the consequences of the exhibition continued to the radiations of the cellular phones, when recovering five demands against Motorola, Nokia and one more dozen of companies of telecommunications. This sector has denied whenever that radiations cause damages to the health, but has not been able to silence the complaints and investigations of those who think that the mobile telephones can cause cancer or other diseases. Thus, the decision of the fourth Court of Appeals of Richmond, Virginia, to retake four of the cases and to send them to the corresponding courts so that they are reviewed, comes to intensify these theories.

The sentence of the cut of appeals maintains that the companies of mobile telephony were at least guilty of not warning of the risk of contracting diseases as cancer by the use of these apparatuses, according to Bloomberg. These are the first demands interposed against the set of the sector of the mobile telephony. In the denunciations it is requested that the companies provide each user with some type of earpiece that it protects of the exhibition to the radiations of low intensity which emit the terminals. But this sanction seems inefficient for many experts since it does not suppose a great payment for the companies. ' The key of this subject is that the industry of the mobile telephony does not want that each cancer of brain that is taken place in the U.S.A. turns a demand about ten million dollars to the sector', comments Paul Sagawa, analyst of Stanford C. Bernstein & Co. The cases splash to the main actors of the sector, as much manufacturers as operators. Motorola, Nokia, VoiceStream Wireless, SBC Communications, Verizon Communications, Nextel Communications, Cingular Wireless, Sprint, Samsung and Ericsson are the accused by these denunciations. Operators and manufacturers insist that scientific study does not exist that demonstrates that the use of the mobile phones causes cancer. In March 2003, the five cases were not admitted to proceeding with the argument the denunciations entered conflict with the attempt of the Senate to define standards of security for the mobile telephony. The denouncers appealed before this decision until the court of appeals yesterday decided to send four of the cases to the courts where they originated and returned fifth to the judge who rejected the denunciations in 2003. The defenders of the denounced companies have insisted that any scientific study does not exist that demonstrates that the use of mobile telephones causes cancer. “The industry will fight with nails and teethes', assured of the lawyers who thinks no of the cases will arrive to be accepted to be put under a jury. The great preoccupation of the affected companies is that this precedent is translated in a new wave of civil demands in the style of the denunciations so common in the U.S.A., where somebody can superficially take to the courts an office companion to him to have thrown a cup of hot coffee. The denouncers are represented by Ken Starr, one of the independent advisors who investigated the bad actions of ex- president Clinton. But no, neither denounced nor denouncers, have wanted to comment out previous the judicial struggle. For those who have more memory, this situation remembers to the first confrontations against the industry of the tobacco. Also one questioned the relation between smoking and the appearance of different diseases in the beginning, whereas today the tobacco companies in the U.S.A. are tired to pay millionaire indemnifications. In fact, this sector faces civil denunciation never interposed by the department of Justice of the U.S.A., that requests fines by a total of 280,000 million dollars. In the field of the mobile telephony it is left much to discover. The World-wide Organization of the Health started a study in 1996 to know the effects the electromagnetic fields. With the present knowledge, it is 'little probable that the exhibition to mobile telephones or stations bases favours the appearance of cancers, although clarifies that the situation can vary as soon as the levels of the radio frequency of these apparatuses rise.

Fronts for the controversy: A report for each combined statement of the El Mobile Spanish extreme forces the controversy by the effect of the mobile phones to the health has been strong in Spain in the last three years and means, until the point of which the unfolding of cellular antennas in the country has paralyzed to a great extent. In order as far as possible to palliate the consequences of the social alarm, the four operators of mobile telephone - Telephone Moving bodies, Vodafone, Pleasant and born Xfera - were not united in March of 2002 to undertake a campaign of measurements and spreading of information. The result has been a luck of annual ITV of antennas, in which the operators have measured each one of the stations bases of the country to see if they fulfilled the norm. The successfully obtained data have been to a large extent positive and they have been used to try to tranquilize the population. Tranquillity: Lack of scientific evidences like there are information that prevent the use of the mobile telephone and the electromagnetic emissions, send reassuring messages for the population. Thus it happened in the Seminary on electromagnetic fields, mobile telephony and health, organized by the Spanish Association Against the Cancer in April of 2004, where the information of the World-wide Organization of the Health and the Committee of Experts of the Ministry of Health were studied. The conclusion arrived is that great parts of the population associates mobile telephony with injurious effects for the health, but that, in spite of it, 'does not exist scientific evidences that demonstrate relation' between this technology ' and cancer'. The seminary also stated that in Spain the levels of emission recommended by Europe in 1999 and gathered in a real decree of 2001 'suitably protect the population of the effects produced by the emissions of the telephony mobil'. Precaution: Taken care for the security of the boy the mobile telephony has been the subject of multitude of information on his effects in the health, as much to favour as in against. One of most recent has reopened the debate on the convenience of leaving young minors of eight years use this technology. The report is from William Stewart, member of the National Council of Radiological safety of the United Kingdom, and it clear requests to the parents that they do not let use mobile phones in any case the minors of eight years. The study insists there are still there no tests that the cellular telephony is injurious, but Stewart has added that several information have bought serious concern on it. For that reason, he alerts on the greater risk than the children run and advises not to put antennas near schools. Credibility: To the search of state organism the Spanish operators of mobile telephone have done all the possible to convince the population that the antennas and the terminals are not dangerous. They have made measurements and they spread all the information on the effects on the health - the positives that arrive at their hands. Nevertheless, they are conscious that their credibility is in jeopardize because they are the part more interested to lower the alarm and the installation of the greater possible number of antennas is allowed. For that reason, Telephone Moving bodies, Vodafone and Amena have begun to demand the creation of a governmental authority that is the one that pronounces when there is an controversial case and whose verdict, given its independence and entailment to the Government, cannot be questioned. It would be something similar to the Agency of Nourishing Security, that guards the conditions of foods and, in necessary case, retires those that are injurious. The operators consider that this new organism would have to depend on the Ministry of Health.

Translation Spanish-English: omega


Informant:

AVECORN
Asociación de Vecinos Contra Radiaciones Nocivas de L'Escala (Girona)

Three reports on recent US federal court decisions involving the Telecommunication Act (TCA) of 1996:

23 March 2005 - RCR Wireless News - Supreme Court rules telecom cases do not include attorney's fees - tower siting case

23 March 2005 - Los Angeles Times - Cities Get Break on Permitting of Cell Towers - another report on this Supreme Court decision on tower siting

18 March 2005 - RCR Wireless News - Industry could ask Supreme Court to review RF lawsuits - 6 headset cases


RCR Wireless News

http://www.rcrnews.com/news.cms?newsId=21934
Supreme Court rules telecom cases do not include attorney's fees
By Heather Forsgren Weaver
March 23, 2005
WASHINGTON-In a stunning 9-0 decision, the U.S. Supreme Court Tuesday told Mark Abrams he is not entitled to attorney's fees and other damages even if he wins a tower-siting case.

"Liability for attorney's fees would have a particularly severe impact in the Telecommunications Act of 1996 context, making local governments liable for the (often substantial) legal expenses of large commercial interests for the misapplication of a complex and novel statutory scheme," wrote Justice Antonin Scalia.

In passing section 704 of the Telecommunications Act, Congress allowed tower owners to go to court if a locality was holding up a siting or if it did not support its decision in writing.

Mark Abrams, an SMR operator, wanted to use a 54-foot antenna on his property for commercial purposes, but the permit was denied by Rancho Palos Verdes, Calif. Abrams sued and won in federal court in 2002. Since then Abrams has been trying to get attorney's fees and other monetary compensation. Earlier this year, the U.S. Court of Appeals for the 9th Circuit ruled in Abrams' favor.

The Supreme Court said that when Abrams went to court to reverse the city's tower-siting decision, he lost the right to also ask for legal fees and damages because Congress did not expressly allow for legal fees and damages in the telecom act.

"In this case, the statute's text, structure and history all provide convincing evidence that Congress intended the Telecommunications Act of 1996 to operate as a comprehensive and exclusive remedial scheme. The structure of the statute appears fundamentally incompatible with the private remedy offered by section 1983," wrote Justice John Paul Stevens in a concurring opinion. "I am not persuaded that the statutory requirements can simply be mapped onto the existing structure of section 1983, and there is nothing in the legislative history to suggest that Congress would have wanted us to do so."

Section 1983 was passed in 1871 and allows people to sue for legal fees and damages when others have been found to violate the law.

Abrams' tower dispute began when he attempted to build a second tower on his property. After several back-and-forth attempts at the local level, Rancho Palos Verdes denied Abrams' request. He then sued, citing section 704 of the Telecommunications Act of 1996.

A federal judge, after waiting more than a year to deliver a decision, sided with Abrams but said he was not entitled to damages. It was this decision that was overturned by the 9th Circuit. Rancho Palos Verdes then appealed to the Supreme Court and won.

The Supreme Court's decision was predicted from oral argument that occurred in January.

Several Supreme Court justices appeared not to buy arguments that municipalities are liable for attorneys' fees and damages when they lose antenna-siting court cases.

In addition to Scalia and Stevens, Justices Ruth Bader Ginsburg, David Souter, Anthony Kennedy and Stephen Breyer expressed skepticism to varying degrees about whether wireless carriers have legal rights to collect attorneys' fees and damages in siting litigation.

Chief Justice William H. Rehnquist, recovering from thyroid cancer treatment, was absent. However, he reserved the right to participate in the Abrams' case based on written briefs in the record. He joined in ruling against Abrams.

Justice Clarence Thomas, as is typically the case, was silent throughout oral argument but he, too, joined against Abrams.

RCR Wireless News Washington, D.C., Bureau Chief Jeffrey Silva, who attended the oral argument, contributed to this report.
Full text of the Supreme Court Decision 03-1601 City of Rancho Palos Verdes et al. v. Abrams is available at:
http://a257.g.akamaitech.net/7/257/2422/22mar20051115/www.supremecourtus.gov/opinions/04pdf/03-1601.pdf

Excerpts from Slip Opinion:

page 1 paragraph 2

Held: An individual may not enforce § 332(c)(7)'s limitations on local zoning authority through a § 1983 action. The TCA -- by providing a judicial remedy different from § 1983 in § 332(c)(7) itself -- precluded resort to § 1983.

Stevens, J., concurring in judgment

page 1 paragraph 1

When a federal statute creates a new right but fails to specify whether plaintiffs may or may not recover damages or attorneys' fees, we must fill the gap in the statute's text by examining all relevant evidence that sheds light on the intent of the enacting Congress. The inquiry varies from statute to statute. Sometimes the question is whether, despite its silence, Congress intended us to recognize an implied cause of action . . . Whenever we perform this gap-filling task, it is appropriate not only to study the text and structure of the statutory scheme, but also to examine its legislative history.

page 4 paragraph 1

. . . Congressional silence is surely probative in this case because, despite the fact that awards of damages and attorney's fees could have potentially disastrous consequences for the likely defendants in most private actions under the TCA, see Primeco Personal Communications v. Mequon, 352 F 3d. 1147, 1152 (CA7 2003), nowhere in the course of Congress' lengthy deliberations is there any hint that Congress wanted damages or attorney's fees to be available. That silence reinforces every other clue that we can glean from the statute's text and structure.


Los Angeles Times
http://www.latimes.com/news/nationworld/nation/la-na-scotus23mar23,1,2650501.story
Cities Get Break on Permitting of Cell Towers

By David G. Savage
Times Staff Writer

March 23, 2005
WASHINGTON ­ The Supreme Court made it easier Tuesday for cities to say no to new cellphone towers in their neighborhoods.

In a 9-0 ruling, the justices said the federal law that was designed to encourage the growth of the telecommunications industry did not allow cities to be sued for damages for refusing to permit a cellphone tower.

In the last decade, 140,000 cellphone towers have sprouted around the nation, but the phone industry says it needs more of them to eliminate "dead spots."

The high court's decision will take some of the pressure off local governments to approve permits for new cellphone towers, although it does not mean they can refuse all of them.

The ruling was one of three Tuesday in which the high court overturned decisions of the U.S. 9th Circuit Court of Appeals, which is based in San Francisco.

The ruling on cellphone towers will affect disputes across the country. However, it did not arise from a typical conflict between a cellular phone company and a municipality, but rather from an unusual dispute between a ham radio operator and the city of Rancho Palos Verdes near Los Angeles.

Mark Abrams, the ham radio operator, erected a 52-foot radio tower on his property on Oceanaire Drive in the Del Cerro neighborhood. City officials objected in 1998, when they learned Abrams was using the tower for commercial broadcasts, and they denied him a permit to broadcast from the tower.

He then sued the city in federal court, seeking an order that would allow him to keep the tower as well as monetary damages and attorney fees. When the U.S. 9th Circuit Court of Appeals ruled for Abrams, the Supreme Court took up the dispute to decide whether the Telecommunications Act of 1996 allowed such damage claims against cities.

Writing for the court in Rancho Palos Verdes vs. Abrams, Justice Antonin Scalia said Congress did not intend for local governments to be liable for huge money verdicts in such disputes. He said it could have "a particularly severe impact" on small towns and rural communities across America if the giants of the cellphone industry could seek monetary damages and legal fees.

Cities must give their reasons for refusing to permit new phone towers, Scalia pointed out, and disappointed applicants may go to court to challenge a city's decision. But that is all, he concluded. They may not seek monetary damages from the city, even if officials wrongly denied the permit, he said.

The ruling is a victory for the League of California Cities and the National League of Cities, which joined the case on the side of Rancho Palos Verdes. Groups representing the cellphone industry had sided with Abrams, arguing that unless checked by the courts, cities could use their zoning powers to exclude cellphone towers.

RCR Wireless News
March 18, 2005
Cover Story
http://www.rcrnews.com/article.cms?articleId=47934


RCR Wireless News

Industry could ask Supreme Court to review RF lawsuits
By Jeffrey Silva
March 18, 2005
WASHINGTON-The mobile-phone industry may ask the Supreme Court to review a federal appeals court ruling that breathed new life into five class-action lawsuits alleging cellular firms could have better protected consumers from mobile-phone radiation harm by supplying them with headsets.

Last Wednesday, the 4th U.S. Circuit Court of Appeals ruled 2-1 to remand four of the headset lawsuits to state courts in Georgia, Maryland, New York and Pennsylvania. The other class-action lawsuit was returned for further proceedings to U.S. District Judge Catherine Blake of Baltimore, who dismissed all five suits on federal pre-emption grounds in 2003.In addition to resurrecting the five headset lawsuits, the 4th Circuit's decision-which turned not on health, but on jurisdiction-could impact pending brain-cancer lawsuits that industry argues are pre-empted by federal law as well cellular consumer lawsuits pitting federal law against states rights.

"We're pleased. We think the court ruled correctly," said Michael Allweiss, a Louisiana lawyer who filed the first headset case and argued for the plaintiffs before a three-judge panel in Richmond, Va., last October. Allweiss is working with attorneys at the law firm of trial lawyer and Baltimore Orioles owner Peter Angelos. The lead headset case is Pinney v. Nokia Inc.

In these cases, plaintiffs are asking that wireless companies supply subscribers with headsets and reimburse those who already have bought them. In addition, plaintiffs are seeking punitive damages.

Former special prosecutor Kenneth Starr, currently dean of Pepperdine University law school and of counsel to the Kirkland & Ellis law firm, argued the appeal for the cellular industry.

Starr strongly suggested the headset case is far from settled.

"Congress has given the FCC broad authority to regulate radio-frequency emissions from wireless phones and the FCC has accordingly set standards for wireless phones through a uniform, nationwide scheme. Thus, these cases belong in federal court," said Starr in a written statement. "The 4th Circuit's split-decision that these cases should not be heard in federal court and are not pre-empted by federal law is unfortunate. We are considering appealing to the full Court of Appeals, and, if necessary will consider seeking review by the Supreme Court."

The jurisdictional issues in this case are important, not just to the mobile telephone industry but to the general enforcement of federal law, and should attract interest from the Supreme Court. But whether these cases are heard in state or federal court, we are confident that the courts will find, as the scientific community has found, that wireless phones cause no adverse health effects."

The mobile-phone industry, which has yet to lose a health-related case, suddenly finds itself in a legal venue favored by many trial lawyers. Defendants in the five class-action headset lawsuits read like a Who's Who of the wireless industry. Included are all five national carriers and the world's leading mobile-phone manufacturers. Industry trade associations are named as defendants as well.

Last July, Blake, who in 2002 rejected an $800 million brain-cancer lawsuit brought by a neurologist represented by the Angelos law firm, remanded six other brain-cancer lawsuits against wireless firms and trade associations to the Superior Court of the District of Columbia.

The mobile-phone industry has asked Judge Brook Hedge to dismiss the six brain-cancer lawsuits based on a federal pre-emption defense. As such, the 4th Circuit decision could hurt industry's case in the brain-cancer litigation.

The wireless industry tried to put the best face possible on last week's legal defeat, saying the 4th Circuit's ruling was about process and venue rather than science, and that it was a split decision with a strong dissent.

Indeed, the 4th Circuit's decision was not altogether surprising, given the court's conservative makeup and its pro-states rights tendency.

Still, it was a major setback for a wireless industry that was led to believe headset (and brain-cancer) litigation was on the way out.

"We have thoroughly examined the claims asserted by the Pinney plaintiffs in their complaints, and one thing is clear: the elements of each of the claims depend only on the resolution of questions of state law," stated Circuit Judge M. Blane Michael, who wrote the majority opinion.

Michael was joined in the opinion by Circuit Judge J. Michael Luttig. Luttig, a native of Tyler, Texas, is regularly mentioned as a future pick for the Supreme Court.

Senior District Judge Jackson Kiser dissented, agreeing with Blake that the headset lawsuits are a thinly disguised attack on the validity of the Federal Communications Commission's radio-frequency radiation safety standard. That standard has been upheld by two federal appeals courts.

"Here, plaintiffs are not merely raising a claim that may undermine a federal regulatory scheme through inconsistent interpretations; rather they are raising claims which, if successful, will result in the complete invalidation of federal regulatory standards. This presents a substantial federal question," said Kiser.

Wireless health studies have yet to definitively link cell phones to cancer or other diseases, though some studies have found adverse biological effects from low level RF radiation. For that reason, government health officials in the U.S. and overseas continue to call for additional research.

"There is nothing good here for the wireless industry," said Rebecca Arbogast, a telecom analyst at Legg Mason. At the same time, she said the decision is not devastating for industry.

Arbogast said the 4th Circuit ruling complicates the legal strategy for the mobile-phone industry. "The defendants will have to litigate in various state courts instead of one-stop shopping with Judge Blake," said Arbogast. "I think it's going to be pesky for industry."

Susan Kalla, a telecom analyst at Friedman, Billings and Ramsey, said she doubted the mobile-phone industry would take a hit as a result of last week's 4th Circuit decision.

Full text of U.S. Court of Appeals for the 4th Circuit decision 03-1433 Pinney v. Nokia is available at: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=4th&navby=title&v1=Pinney
Excerpts from Opinion:

page 1 paragraph 2

Held: An individual may not enforce § 332(c)(7)'s limitations on local zoning authority through a § 1983 action. The TCA -- by providing a judicial remedy different from § 1983 in § 332(c)(7) itself -- precluded resort to § 1983.

Stevens, J., concurring in judgment

page 1 paragraph 1

When a federal statute creates a new right but fails to specify whether plaintiffs may or may not recover damages or attorneys' fees, we must fill the gap in the statute's text by examining all relevant evidence that sheds light on the intent of the enacting Congress. The inquiry varies from statute to statute. Sometimes the question is whether, despite its silence, Congress intended us to recognize an implied cause of action . . . Whenever we perform this gap-filling task, it is appropriate not only to study the text and structure of the statutory scheme, but also to examine its legislative history.

page 4 paragraph 1

. . . Congressional silence is surely probative in this case because, despite the fact that awards of damages and attorney's fees could have potentially disastrous consequences for the likely defendants in most private actions under the TCA, see Primeco Personal Communications v. Mequon, 352 F 3d. 1147, 1152 (CA7 2003), nowhere in the course of Congress' lengthy deliberations is there any hint that Congress wanted damages or attorney's fees to be available. That silence reinforces every other clue that we can glean from the statute's text and structure.



Janet Newton, President
The EMR Policy Institute, P.O. Box 117, Marshfield VT 05658
Tel: (802) 426-3035 FAX: (802) 426-3030
Web Site: http://www.emrpolicy.org



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