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Clearwire has declared war on Portland. Since they have come on line here the ambient radiation in my house has increased 100 times. I am going to have to move out of the city to protect my life, my daughter's life and my sanity. this is not a benign technology. These towers are microwave weapons that will kill many in it's path. Do not lie down and let these go up. There are more of us than them. Detailed Military studies for over 60 years show serious damage from RF the same frequency as cell towers
More information about the biological effects of non-ionizing radiation from wireless technology is coming out every day. Enough is not being done by cities, counties, states and the Federal Government to protect us from the potentially devastating health and environmental effects. Through the 1996 telecommunications act the telecoms are shielded from liability and oversight. Initially cell phones were released with no pre-market safety testing despite the fact the Government and the Military have known for over 50 years that radio frequency is harmful to all biological systems (inthesenewtimes dot com/2009/05/02/6458/.). Health studies were suppressed and the 4 trillion dollar a year industry was given what amounts to a license to kill.
On it's face, the 1996 telecommunications act is unconstitutional and a cover-up. Within the fine print city governments are not allowed to consider "environmental" effects from cell towers. They should anyway! It is the moral and legal obligation of our government to protect our health and welfare? Or is it? When did this become an obsolete concept? A cell tower is a microwave weapon capable of causing cancer, genetic damage & other biological problems. Bees, bats, humans, plants and trees are all affected by RF & EMF. Communities fight to keep cell towers away from schools yet they allow the school boards to install wi fi in all of our schools thereby irradiating our kids for 6-7 hours each day. Kids go home and the genetic assault continues with DECT portable phones, cell phones, wi fi and Wii's. A tsunami of cancers and early alzheimer's await our kids. Young people under the age of 20 are 420% more at risk of forming brain tumors (Swedish study, Dr. Lennart Hardell) because of their soft skulls, brain size and cell turn over time. Instead of teaching "safer" cell phone use and the dangers of wireless technology our schools mindlessly rush to wireless bending to industry pressure rather than informed decision making. We teach about alcohol, tobacco, drugs and safe sex but not about "safer" cell phone use. We are in a wireless trance, scientists are panicking while young brains, ovaries and sperm burns. In Europe they riot, bulldoze cell towers in residential neighborhoods. this is an act of war, it is destroying our brains, our health, our children, ourselves, our plants, animals, forests, ALL BIOLOGICAL ENTITIES ARE AFFECTED BY RADIO FREQUENCY RADIATION. THIS IS AN ACT OF WAR.

homepage: homepage: http://WWW.WIRELESSWATCHBLOG.COM

court precedent re: telecommunications act 04.Sep.2010 00:23


10/28/2007 12:02 PMTown Can Reject Cell Phone Towers
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Town Can Reject Cell Phone TowersBack


22 February 2001LAWYERS WEEKLY USA

December 13, 1999 Cite this Page: 99 LWUSA 1105

National Law:Town Can Reject Cell Phone TowersWhere a town zoning board would not allow a cellular phone tower in aresidential area, this didn't violate the Telecommunications Act of 1996, saysthe Third Circuit in reversing a U.S. District Court.Over the past 10 years, towns have been trying to regulate where cell phonetowers are located. The towers can exceed 250 feet in height and are oftenplaced in residential areas or in the middle of a scenic view. There areexpected to be over 100,000 towers in the U.S. within a few years. Although atfirst courts made it difficult for towns to stop cellular towers from beingbuilt, municipalities are now having increasing success. Experts say that theThird Circuit's decision is the latest in a series of cases to establish thepower of local zoning authorities over the placement of towers."The pendulum has swung back to the middle. The courts seem to be striking abetter balance between municipalities and the needs of the industry," saysJohn Wilson of Rochester, N.Y., who successfully represented a municipality ina recent SecondCircuit case. (Sprint Spectrum, L.P. v. Willoth, 176 F.3d 630;99 LWUSA 521; Search words for LWUSA Archives: Cross and Yesawich.)"There was a time when the industry would roll over city councils and say, TheAct permits us to put up towers at our convenience,'" agrees municipal lawyerFritz Knaak of Vadnais Heights, Minn. "This case shows that courts now betterunderstand the arguments and are willing to defer to a municipality'sjudgment." The decision should give towns more leverage in negotiations withphone companies."Municipalities clearly have the upper hand," says attorney L. Steven Emmert,who successfully represented Virginia Beach, Va., in a recent Fourth Circuit10/28/2007 12:02 PMTown Can Reject Cell Phone Towers
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case. (AT&T Wireless PCS v. City Council of Virginia Beach, 155 F.3d 423; 98LWUSA 745; Search words for LWUSA Archives: Gibson and Golembeck.)"Providers are becoming more conciliatory at the zoning board level becausethe risks of litigation are less clearly tipped in their favor than theyoriginally thought," agrees Wilson. Attorneys for cellular phone companiescomplain that the courts are making it too difficult for their clients to gettowers approved."This case follows the trend of courts raising the bar on what a providerneeds to prove in order to get a site developed," says Kenneth Baldwin, whopractices in Hartford, Conn. "I don't understand how any provider can really meet the burden imposed by this court."Residential Area

The town in this case passed an ordinance restricting cell towers to lightindustrial areas. A cell phone company requested a zoning variance permittingit to erect a 160-foot tower in a residential district. When the board deniedthe variance, the company sued under the Telecommunications Act, arguing thatthe denial had "the effect of prohibiting the provision of wireless services."(47 U.S.C. Sect. 332(c)(7)(B)(i)(II).)But the court disagreed."[T]he [Act's] 'effect of prohibiting' clause [does not] encompass everyindividual zoning denial simply because it has the effect of precluding aspecific provider from providing wireless services...To do so would providewireless service providers with a wildcard that would trump any adverse zoningdecision..."[A] provider whose application has been denied...must show two things.First...that its facility will fill an existing significant gap in the abilityof remote users to access the national telephone network... The provider'sshowing on this issue will...have to include evidence that the area the newfacility will serve is not already served by another provider..."Second, the...applicant must also show that the manner in which it proposesto fill the significant gap in service is the least intrusive on the valuesthat the denial sought to serve."In a second case decided a few days later, the court applied the same two-parttest, but remanded the case for additional findings as to whether the proposedtower would fill a "significant gap."High Threshold

Lawyers say requiring companies to show that a proposed tower will fill a"significant gap" in service imposes a difficult new restriction on cell phonetowers. "The case establishes an awfully high threshold for providers whoclaim that a municipality is prohibiting wireless services, because they haveto show that there's no access to the national telephone network by anyprovider" in that area, says Nancy Essex, a municipal attorney who works inRaleigh, N.C.In effect, the court is saying "that a municipality's authority to deny aprovider's application becomes greater when it is beaten to the punch byanother provider," says Ted Kreines of Tiburon, Calif., a consultant to local10/28/2007 12:02 PMTown Can Reject Cell Phone Towers
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governments on wireless planning and editor of the newsletter PlanWireless. Inaddition, "the factual inquiry about 'least intrusive alternatives' is goingto make these cases much less susceptible to summary judgment," says Emmert.The result, say defense lawyers, will be slower development and increasingcosts. "We're going to need more coverage, not less, in the future, and thetougher it is to get towers erected, the slower the system develops," saysBaldwin. Companies will be forced to design cell phone towers which aredisguised as trees or flagpoles or worked into existing structures, saysStoneham, Mass., attorney Greg Higgins, who represents phone companies. "Thedownside is these technologies cost two to five times as much as standarddevelopment costs - and this translates into higher prices for the consumer."What Towns Should Do

Experts say there are a number of things municipalities can do to make it morelikely that their zoning decisions will be upheld. A front-page article onthis issue appears at 97 LWUSA 529; Search words for LWUSA Archives: Dam andLinder.* Preempt problems.

The best way to handle conflicts over cell towers is to try to avoid themaltogether. Towns should bring in consultants before the issue arises, saysKnaak. That way, a list of available sites can be compiled in advance and itwon't look like the town is intentionally trying to keep towers out.Working out problems early in the process can benefit companies, too, saysEssex. "This case shows that it's in a provider's interests to come to a localgovernment early and get a whole network approved, because when the providerneeds one last tower to complete a pattern and fill a gap, the fact thatthere's only one available site isn't going to be enough to justify a

tower."* Don't forget the details.Although courts are becoming more likely to reaffirm local zoning authority,municipalities still need to be meticulous about observing proceduralproprieties, says Essex. "A lot of the challenges to municipalities have beenon a procedural basis. Make sure that an order rejecting an applicationcontains the grounds for the decision, and that decisions are made within areasonable time," she cautions.Also, it's vital for towns to buttress their case with supportingdocumentation and testimony. "The most important factor when you're in courtis to have a full record developed below," says municipal attorney Kirk Winesof Seattle. "If you build a careful record at the hearing level, the court ismore likely to back you up."* Hire experts.

Another step that more and more municipalities are taking is to countercompanies' use of expert testimony with their own. "Be sure to retain your ownexperts," says Philip Lope of Zelienople, Pa., who represented the town in theThird Circuit case.Municipalities should consider getting an expert to testify on such issues as"the quality of service, the nature of the gap in service, other feasible,10/28/2007 12:02 PMTown Can Reject Cell Phone Towers
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less intrusive alternatives to the proposed tower, and whether other providersare able to supply service without requiring a zoning variance," suggests JohnPestle, a municipal attorney from Grand Rapids, Mich.Other useful experts might include a radio frequency engineer who canchallenge the company's technological assertions and an appraiser to testifyabout effects of the proposed tower on property values, says Wines.* Ask for alternatives.Cities and towns should take advantage of the burden placed on companies bychallenging them to show that no less intrusive alternatives are available,says Wilson. In this case, "the court said that there are alternatives toevery cell site - no court has ever come right out and said that before.They've danced around it, alluded to it, but here the court says, 'Don't justbring us one option,'" says Kreines. But towns shouldn't get overconfidentwithout having the facts to back up the assertion that less intrusivealternatives are available, warns Emmert."If localities abuse their position, the courts are going to stop giving themdeference and say, if you really think there is a less intrusive alternative,prove it," he says.U.S. Court of Appeals, 3d Circuit. APT Pittsburgh L.P. v. Penn Township, No.98-3519. November 8, 1999. Lawyers Weekly USA No. 9917124 (20 pages). Clickhere to order this opinion.U.S. Court of Appeals, 3d Circuit. Cellular Telephone Co. v. Zoning Board ofAdjustment of the Borough of Ho-Ho-Kus, No. 98-6484. November 19, 1999.Lawyers Weekly USA No. 9917132. (11 pages). Click here to order this opinion.To order a copy of either opinion, call 800-933-5594.Back to Top