Legal Actions

The preemption of our rights by this rule is unprecedented, as well as unlawful. Under OTARD, homeowners will be allowed, for the first time, to use their fixed wireless antennas to provide wireless data/voice services, including 5G, to users on neighboring properties. People who are adversely affected by the rule and will not want to be “served” and exposed to the involuntary radiation, will not have any right to prevent or even object to these antennas’ installation.

A coalition of 68 wellness organizations is lending support to a lawsuit in the D.C. Circuit challenging a Federal Communications Commission rule meant to facilitate the installation of wireless internet equipment in residential areas. 

OTARD does not require permit or notice; it preempts state and municipal zoning laws and homeowners’ associations and deed restrictions. It even preempts federal and state disability laws. For those of us who are already sick from wireless, this rule will have especially devastating effects and takes away the little rights we were left with. It will force people to leave their homes with nowhere to go and with no legal recourse. 

WT Docket No. 19-71,  Released: January 7, 2021 

City of Boston, Massachusetts, et al v. FCC, et al
Boston, Los Angles and others sue to review June FCC 5G Order restricting the review of tower modifications

Boston and Los Angeles, including Gaithersburg, Montgomery County, Rockville and and seventeen others are asking the D.C. Circuit to review a June Federal Communications Commission order limiting local governments' authority to delay equipment upgrades in the agency's effort to expedite the deployment of 5G networks. The commission's ruling also narrowed the required regulation for certain aspects of wireless infrastructure modifications — like height increases, equipment cabinet additions and impact on concealment elements, as well as aesthetic conditions.

The ruling, in addition, said applicants that sought to make wireless infrastructure modifications did not need to submit environmental assessments outlining potential impacts to historic properties if they entered into an agreement to mitigate the effects on historic properties.

The ruling came after CTIA, a wireless trade group, pushed the FCC late last year to make clarifications to its rules to stop cities that were, in CTIA's view, misinterpreting the rules and putting brakes on 5G infrastructure buildouts.

The case is City of Boston, Massachusetts, et al. v. FCC, et al., case number 20-1301, in the U.S. Court of Appeals for the D.C. Circuit.

Has since been consolidated with Seattle, WA filed DC Cir. on 8/7, No. 20-1300 and the League of California Cities filed 9th Cir. on 6/22, No. 20-71765. Resulting case number No. 20-1300 [20-1301].
City of Boston, Massachusetts, et al v. FCC, et al
NOTICE [1861625] of cases transferred to 9th Circuit. 20-1300 - 9th Circuit case number is 20-72734; 20-1301 - 9th Circuit Case Number is 20-72749 [Service Date: 09/16/2020 ] [20-1300, 20-1301] [Entered: 09/16/2020 09:23 AM]

FCC gets sued over stale health guidelines

In 2019, the FCC issued FCC-19-126 “FCC Maintains Current RF Exposure Safety Standards.” Both the Children's Health Defense (CHD) and Environmental Health Trust (EHT) have filed suits against the FCC for relying on 24 year old health standards without a meaningful review. The suits have been combined by the court into one suit in US District Court.

For a copy the brief and four amicus briefs see:

For the complete history, timelinea and documents, see

Children's Health Defense v. FCC
Children’s Health Defense (CHD) is leading a historic legal action against the Federal Communication Commission (FCC) for its refusal to review their 25 year old guidelines, and to promulgate scientific, human evidence-based radio frequency emissions (“RF”) rules that adequately protect public health from wireless technology radiation."

Environmental Health Trust
Environmental Health Trust has filed a lawsuit alleging the Federal Communications Commission (FCC) failed to update cellular phone and wireless radiofrequency (RF) radiation limits and cellular phone testing methods in over two decades. These failures, the plaintiffs contend, ignore “peer-reviewed scientific studies showing that radiation from cell phones and cell phone towers and transmitters is associated with severe health effects in humans, including cancer, DNA damage, damage to the reproductive organs, and brain damage (including memory problems).”historic legal action against the FCC for their non protective, inadequate and outdated wireless regulations. We filed in the US Court of Appeals for the District of Columbia Circuit on January 31, 2020.

"Neutral Hosts" need to follow same cell tower rules as all other cell tower builders

"Neutral host" ExteNet tried to claim they didn't need to show significant gap in service among others because they were renting out the tower.  Court ruled they did. The ruling only applies to the state of Massachusetts (I assume.)

"In an important win for those who are concerned about 5G and small cell wireless proliferation, on August 26, 2020 the U.S. District Court for the District of Massachusetts dismissed a lawsuit by “neutral host” provider ExteNet Systems, Inc. against the City of Cambridge, MA" by Scott McCollough, McCollough Law Firm, PC.

Full Scott McCollough, Esq., letter commenting on the City of Cambridge, Ma win.

Irregulators win

A first reading of the results, you will see the case was thrown out. You need to go beyond this.  It's import to fill in the blanks. What was thrown out was FCC accounting rules that allowed the wireless industry to misallocate money from the wired industry to the wireless industry.

The telecoms want to get out from control of the state utility commissions. What you pay for a land line is under control of the state utility commissions.  What you pay for your cell phone is "whatever the market will bear".  Therefor, the telecoms want to migrate to all wireless networks.

What the irregulators showed was the telecoms where "stealing" money from landline funds to pay for wireless.  It was hidden behind accounting rules propagated by the FCC. In particular, the FCC was saying the state utility commissions had to follow the FCC accounting rules [ which favored wireless ].   The court concluded that the FCC didn't have the authority to set the accounting rules.  Since the FCC could not set these accounting rules, there could not be a case against something the FCC has no authority over in the first place.  Thus, state utility commissions can set their own accounting rules.

Quick overview of the scam:

It is hoped the states will correct the accounting rules and collect money from the telecoms for "stolen" funds.
      alternative explaination

Montgomery County sues FCC by itself
Lack of a health review before promulgating new cell tower rules
  • Montgomery County in a closed meeting reportedly declines to appeal decision even though one of judges suggested the county appeal.

City of Portland, Oregon, et al. which includes Montgomery County sues FCC
Won some adjustment in aesthetic requirements. While FCC won most other claims. 

Portland, et. al. appealed to the US Supreme Court. On June 28, 2021 Supreme Court declined to hear the appeal.

City of Portland Oregon, et. al. are appealing to the Supreme Court. 
       Text of Portland's appeal 
Supreme Court document log

The amount of money the county can charge per cell tower in the utility right-of-way.
    Oral argument  00:00:00 and 01:08:58

W. Scott McCollough comments on the 9th Circuit court put ruling to the Malibu, Ca City Council:

The Ninth Circuit’s August 12, 2020 decision vacated the FCC’s “aesthetic” limits and imposed some useful limiting interpretations on other parts of the rules it sustained. One important aspect is that the Ninth Circuit refused to be cowed by the FCC’s criticism of the Court’s “significant gap”/least intrusive” test and the FCC’s effort to substitute a lower bar through the “material inhibition” standard.” Compare Small Cell Order, 33 FCC Rcd at 9101-9110, with City of Portland, 2020 U.S. App. LEXIS 25553 at *19-22, 34-43. The “significant gap”/least intrusive” test remains alive and well in the Ninth Circuit.

Andrew Campanelli put forth to in a video conference on March 30, 2021 that The 9th court punted on the changes to on effective prohibition and that the FCC couldn't change the definition of effective prohibition since the court has already defined it.
And so, a case came to a district court in New York in the 2nd Circuit, and a federal judge basically knocked down the FCC and said, listen, we applaud the FCC. We understand that it's not happy that Congress hasn't amended the Telecommunications Act to keep up with technology, but. Is my favorite words, “it's not up to the FCC to put words in the Telecommunications Act that are unfair.” And so, the federal court ruled against the FCC and said you can't just reinterpret it. In that case, I can give you the citation. That was clear Wireless LLC versus Building Department of the Village of Lynbrook. The citation is 2012, Westlaw 826749. And the and the federal court actually said under such a circumstance, it is not up to the FCC to construe the TCA. to say something it does not say, nor up to the court to fight broadband communication encompassed by the law.

FCC's order on which this case is based.
September 26, 2018

FCC revised rules for pole antennas August 2, 2018

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