JANUARY 25, 2021 UPDATE HE’S BACK!! COUNCILMEMBER RIEMER RE-INTRODUCES ZTA 19-07 WHILE ANNOUNCING A “FINAL PUSH” TO PASS INDUSTRY FRIENDLY ZONING REGS IN THE MIDST OF A RAGING PANDEMIC

January 25, 2021 UPDATE
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By Rick Meyer, Montgomery County Coalition for the Control of Cell Towers

HE'S BACK!!

COUNCILMEMBER RIEMER RE-INTRODUCES  ZTA19-07  

while announcing A "FINAL PUSH" TO PASS INDUSTRY FRIENDLY ZONING REGS IN THE MIDST OF A RAGING PANDEMIC

Councilmember Hans Reimer (D/At-Large) last week issued press release setting February 10, 2021 as the date he intends to revisit action (again) on Zoning Text Amendment (ZTA) 19-07 that had been "suspended" almost exactly one year prior.

We remain STRONGLY OPPOSED to this very ONEROUS zoning bill, which is completely unfriendly to County residents.  Particularly at this time when residents and most elected officials of the County Government are focused on beating COVID-19.

The press release contains numerous assertions that are NOT supported by data, and it misleadingly scrambles analogies between WIRED and WIRELESS networks. A full fact-check on the press release will be ready later this week.

As lead sponsor again, Mr. Riemer, with this proposed legislation, makes his fourth attempt  over the past three years, to make it faster, cheaper, and easier for Big Wireless to install bulky, high-powered wireless antenna transmitters and related equipment as close as 30 feet, and sometimes closer, to single-family zoned homes.

ZTA 19-07 is co-sponsored by Council Vice-President Gabe Albornoz (At-Large) and Councilmember Craig Rice (District 2). Both co-sponsors are quoted in the press release.  However, neither Mr. Albornoz nor Mr. Rice serves on the Planning, Housing & Economic Development (PHED) Committee which has jurisdiction over wireless zoning issues.

Why Riemer Pulled the Bill in 2020

Mr. Riemer, as Chair of the County Council's PHED Committee, summarily pulled a scheduled vote on the proposed bill from the Committee agenda on February 1st of last year. He was apparently unable to enlist the support of PHED Committee members -- Councilmembers Andrew Friedson (D - District 1) and  Will Jawando (D/At-Large) -- in order to move the bill out of the committee. Committee approval is necessary to bring the bill to full Council for consideration and final vote.

The Council conducted a hearing last year where two dozen County residents testified to register STRONG disapproval of the ZTA.  Of the scant number who spoke in favor of the ZTA, most of them had ties to the wireless industry (lobbyists and outside lawyers).

County Executive Marc Elrich submitted testimony OPPOSED to ZTA 19-07 at the hearing in January 2020.  Mr. Elrich urged the Council to pause, so that comprehensive zoning legislation and administrative regulations could be developed to address the wireless issues. And he conveyed his intent for staff and agencies to develop the legislation and regulations by working with residents and technical experts, not just industry lobbyists.

It was reported last year that neither Mr. Friedson, nor Mr. Jawando would support ZTA 19-07 while Montgomery County was actively engaged in two lawsuits against the FCC. (Those lawsuits are very briefly described below.) So, rather than be defeated in a formal (and public) Committee vote, Mr. Riemer - as Chair - simply removed the item from consideration the day before scheduled vote last year and placed bill in suspension.  (More explanation about Mr. Riemer's sidestep on ZTA 19-07 can be found in this Bethesda Beat article...)

However, if Mr. Reimer can swing just one PHED member to support ZTA 19-07 this year - a full and final Council vote could come as soon as early March 2021.

There is unlikely to be another hearing allowing public testimony. So we must stop ZTA 19-07 in Committee – with a formal vote.
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We need your support to STOP ZTA 19-07 once and for all!  

We urge each of you to email both Mr. Friedson and Mr. Jawando TODAY (along with the 4 other Councilmembers who have NOT sponsored this bill). Tell Councilmembers to prioritize the concerns of County residents and neighborhoods ahead of the interests of Big Wireless.

Find Council Contact Information at the bottom of this page

More details will be coming soon.

 

Montgomery County's Lawsuits Against the FCC

Updated: July 15, 2020 (Another update will be posted here very soon).

The County remains engaged in two very important pending lawsuits against the FCC. Decisions are expected sometime in the second half of this year.  These lawsuits are:

  1. Challenge to FCC's 3rd Order(WC docket 17-84 and WT docket 17-79) as adopted in August 2018. Montgomery County was one of more than 40 municipalities and counties (plus many other entities) that contested the FCC's "3rd Order." The FCC's issuance of the 3rd Order was widely interpreted as a huge win by the wireless industry where Chairman Pai's FCC allowed expedited roll-out of 5G at expense of local regulatory authority over public rights-of-way. The various multiple lawsuits contesting the 3rd Order were consolidated into the 9th Circuit. Oral arguments were heard by a three-judge panel on February 10, 2020. Video of the proceedings can be seen here:
  2. Challenge to FCC's failure to update 1996 RF Emissions standards. This separate lawsuit was funded exclusively by Montgomery County and filed in early 2019. The suit seeks to compel the FCC to update RF emission rules to reflect realities of close proximity wireless transmitters that Big Wireless is installing for 4G and 5G technology. {You can read more about Montgomery County's suit here.} Keep in mind that small cell technology did not exist in 1996 - when almost all wireless facilities were on taller "macro towers" or on roof tops of multi-story commercial buildings - usually away from general public. Montgomery County's litigation against the FCC's failure to act on RF emissions was also consolidated with case(s) described above in 9th Circuit. Oral arguments were also heard on February 10, 2020.

It is no small irony, that Mr. Reimer and Mr. Rice, who were both on the Council in November 2018 voted IN FAVOR of the RF Emissions litigation at the urging of outgoing County Executive Ike Leggett. And, yet both would subsequently introduce and support ZTA 19-07 which seeks to expedite 5G rollout with NO new RF safety standards!

The FCC Tries to Cut Legs Out from Under Montgomery County's RF Emissions Lawsuit

On November 27, 2019 the FCC very suddenly decided to end a long running "Notice of Inquiry" that had sought public input on whether FCC should amend RF Emissions standards. (It was the failure of the FCC to conclude this very inquiry that led to Montgomery County's second lawsuit described above.) The FCC found in Order 19-226 that - despite extensive public comments and ample scientific data to the contrary:

  • "no appropriate basis for and thus decline to propose amendments to existing (RF emissions) limits - at this time."
  • imputted the safety of RF emissions to include all "modern" technology and then streamlined criteria for licensing.
  • decided that methodology for assessing high frequency (gigahertz GHz) devices will be extended to apply to THz frequencies, as well; and,
  • denied a petition regarding health exposure to outer ears - by treating these sensitive sensory organs just "like all other extremities."

Council Effectively Declines to Appeal FCC Order 19-226 - and Slams Door Shut on Back-up Strategy to Beat FCC

During February 10, 2020  oral arguments members of three-judge 9th Circuit panel very pointedly asked County's legal counsel whether Montgomery County was appealing the FCC's action in 19-226.

Surprising, the County's legal counsel answered: "No!"

As a important footnote, the Council held a "Executive Session" - out of public view - on January 28, 2020 to meet with legal counsel (Keller & Heckman) representing County regarding lawsuit on RF emissions. Regrettably, as is the Council's custom, the Executive Session meeting minutes provide no summary of the actual discussion nor the conclusions reached by Council - except that "guidance was provided to the County Executive."  As such, the Council has made no public announcements regarding the January 28, 2020 closed Council session where "FCC litigation" was reportedly discussed, nor provided any interim updates to residents of Montgomery County  on progress of this very important litigation.

But from all appearances, the County Council apparently declined to file as intervenor (or even file amicus brief) to support the very  important  Petition for Reconsideration as filed by the Environmental Health Trust seeking to specifically overturn Order 19-226.

The EHT petition asserts that the FCC (in Order 19-226) improperly terminated a Notice of Inquiry begun in 2013 to update RF Emissions standards and by doing so unlawfully disregarded a large body of evidence in violation of the Administrative Procedures Act. (APA)

Thus, through action/or inaction in secret Executive Session, the Council may have effectively closed off the only possible backup alternative if the 9th Circuit rejects the County's own RF Emissions lawsuit for lack of standing. (e.g. the FCC did what the County's lawsuit asked and ended the Notice of Inquiry.) In other words, there is real possibility that County's second lawsuit becomes moot, even if outcome of updated RF regulations were not issued as County sought.

Legal Counsel leading EHT's appeal is Montgomery County resident Ed Myers, who recently factored prominently in a successful legal challenge against FCC in United Keetoowah Band of Cherokee Indians, et al v. FCC, 933 F.3d 728 (D.C. Cir., Aug 19, 2019). In fact, the County's own lawsuit against the FCC (the second suit listed above) even cites that decision in it's brief!

Email County Council TODAY with our Online Action Tool:

actionnetwork.org/letters/stop-zta-19-07

Council Contact Information

Gabe Albornoz 240-777-7959
Councilmember.Albornoz@montgomerycountymd.gov

Andrew Friedson 240-777-7828
Councilmember.Friedson@montgomerycountymd.gov

Evan Glass 240-777-7966
Councilmember.Glass@montgomerycountymd.gov

Tom Hucker 240-777-7960
Councilmember.Hucker@montgomerycountymd.gov

Will Jawando 240-777-7811
Councilmember.Jawando@montgomerycountymd.gov

Sidney Katz 240-777-7906
Councilmember.Katz@montgomerycountymd.gov

Nancy Navarro 240-777-7968
Councilmember.Navarro@montgomerycountymd.gov

Craig Rice 240-777-7955
Councilmember.Rice@montgomerycountymd.gov

Hans Riemer 240-777-7964
Councilmember.Riemer@montgomerycountymd.gov

Latest FCC Lawsuit information:

ZTA 19-07 Opposition Testimony Spotlight: Sue Present, Individual

November 19, 2019 - Council Session - Evening Public Hearing (ZTA 19-07)

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