Action Alerts

An Unsupported Rationale: The So-Called Legal Case for Montgomery County’s ZTA 19-07 Falls Apart

July 12, 2021

Peter L. Kahn, J.D., Ph.D.
Montgomery County Resident

Summary

The County Council appears poised to adopt ZTA 19-07 in part because some members believe that doing so is legally required. That is simply not the case.

Give the Community a Voice: Support A Stakeholder Advisory Group.

E-MAIL THE COUNTY COUNCIL TODAY IN LESS THAN A MINUTE!

One basis for believing this is the FCC's Small Cell Orders of 2018, which proposes a "material inhibition" standard for the courts to use in evaluating claims under Section 332 of the Telecommunications Act of 1996 -- in other words, does a denial of a permit for a cell antenna "materially inhibit" the placement or construction of wireless cell facilities. Most denials of permits will materially inhibit their placement, and thus this standard strongly favors the interests of telecom companies. However, literally no federal court has adopted this standard for cases under Section 332, and the Court of Appeals for the Second Circuit has made it clear that the FCC has no authority to change the federal courts' interpretations of federal law. The standard that has always been used, and continues to be used, by the Courts of Appeals across the country is the "effective prohibition" standard. It asks, does this denial of permit effectively prohibit the provision of cell service? This is a much tougher standard for telecoms to meet, especially when cell service is already abundantly available from multiple carriers. But the "effective prohibition" standard continues to be applied by all the Courts of Appeals for such cases, and no court anywhere has abandoned that standard in favor of the FCC’s preferred “material inhibition” standard for cases under Section 332.

The other basis offered for believing that ZTA 19-07 is legally necessary is the recent case City of Portland v. FCC. In that case, the Ninth Circuit looked at proposed regulations arising under a completely different section of the Telecommunications Act, that is, Section 253. The court in that case applied a "material inhibition" standard, just as it always has in cases arising under Section 253. One might be forgiven for confusing the Section 253 "material inhibition" standard, with the FCC's proposed "material inhibition" standard for Section 332, but in fact they have different origins. City of Portland did not deal with Section 332, and clearly did not adopt a "material inhibition" standard for Section 332 cases. The "effective prohibition" standard for cases under Section 332 remains in effect in every federal circuit, including the Ninth Circuit.

Section 332 of the Act specifically deals with the "placement, construction, or modification," of personal wireless facilities -- in other words, the very subject matter that the proposed ZTA 19-07 deals with. Any legal claims that might be prevented by the adoption of 19-07 would (in the absence of 19-07) be evaluated by the courts under the legal standard that has always been applied to Section 332 -- in other words, the "effective prohibition" standard -- because those claims would arise under Section 332, dealing with "placement, construction, or modification" of cell facilities. The FCC's Small Cell Orders did not change that. The City of Portland case did not change that. Under every federal Court of Appeals in the country, cases dealing with "placement, construction, or modification" of cell facilities will be examined under Section 332 under an unchanged "effective prohibition" standard.

In Montgomery County, a telecom asking for review under Section 332's "effective prohibition" standard is likely to lose. Our County already has excellent cell service. Just look at the coverage maps published on their websites by Verizon, AT&T, and T-Mobile. It will be challenging for any permit applicant to claim seriously that our County has "effectively prohibited" cell service. In truth, we are in full compliance with federal law, and any legal claims against Montgomery County's local governments will be very difficult for the telecom applicant to win.

Indeed, adopting ZTA 19-07 would itself be a massive change in the standards for cell placement -- it would take away virtually all local control, and grant to any telecom the right to use any piece of public property it wishes. This would constitute a massive give-away of epic proportions to the telecom industry, and would be a policy and legal mistake of the first order.

Read the full PDF in the viewer below or download here.

 

Posted by twtpadmin in Action Alert, Legislation

Breaking News & Action Alert: County Executive Calls For Multi-Stakeholder Advisory Working Group For Cell Towers Siting in Residential Areas

ScreenShot Marc Elrich memo_re Cell Tower Bill ZTA 1907

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"My staff and I have talked with many residents and industry representatives, and we have found them to be knowledgeable and willing to help improve the process. I would like to propose that we convene a working group comprised of a diverse group of stakeholders, including industry, residents, municipalities and homeowner/tenant associations and/or non-profit organizations. Staff support would be provided by Executive and Council staff. The group would have a limited time – perhaps 75 -90 days - to present written recommendations. I believe such a group would allow opportunity for a more complete discussion of these issues." 

"Regarding concerns about ZTA 19-07, I have the following concerns and comments:

  1. The ZTA does not set any proposed minimum setback from a building; it is a limited use  process up to 30 feet from the building and then it is a “modified conditional use” process  for less than 30 feet setback."

Hats off to Marc Elrich, Montgomery County Executive, for for actually wanting to engage ALL stakeholders on these complex and important issues!

Call and E-mail  ALL Councilmembers Now and Tell Them You Support Marc Elrich's Multi-stakeholder Advisory Working Group For Cell Towers Siting in Residential Areas. You may also send an e-mail letter using our Action Network link. It only takes a minute!

phone * e-mail * tweet

Council Vice President Gabe Albornoz (ZTA 19-07 co-sponsor) 240-777-7959
Councilmember.Albornoz@montgomerycountymd.gov
@albornoz_gabe

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

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

Tom Hucker (Council President) 240-777-7960
Councilmember.Hucker@montgomerycountymd.gov
@CmHucker

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

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

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

Councilmember Craig Rice (ZTA 19-07 co-sponsor) 240-777-7955
Councilmember.Rice@montgomerycountymd.gov
@RicePolitics

Councilmember Hans Riemer (ZTA 19-07 Lead Sponsor) 240-777-7964
Councilmember.Riemer@montgomerycountymd.gov
@hansriemer


Montgomery County Executive Marc Elrich 240-777-2500
marc.elrich@montgomerycountymd.gov
@MontCoExec

Posted by twtpadmin in Action Alert

Action Alert: Montgomery County Council to Vote on Cell Antennas Placed 30 Feet From Homes ZTA 19-07

ZTA 19-07 Update March 10, 2021: Re-post from Small Cells in Montgomery County.

The Montgomery County Planning, Housing, and Economic Development (PHED) Committee just voted for a new ZTA 19-07 that would allow a utility pole or street light at least 30 feet from your house to be swapped out with a new pole that has antennas.

  • 30 FEET SETBACK

Cell antennas can now be placed 30 feet from our homes.

  • ZERO PUBLIC COMMENT & HEARINGS:

Antennas proposed for street lights or utility poles 30 feet or more from homes would be effectively automatically approved. There will be no notice nor hearings.

  • WIDER POLES

New wider poles will be replacing the street lights and utility poles in order to hold the heavy equipment

  • TALLER STREET LIGHTS

Our street lights will go up several feet higher to be capped with cellular antennas.

WHAT CAN YOU DO

Email County Council TODAY with our Online Action Tool:
actionnetwork.org/letters/stop-zta-19-07

 

 

Posted by twtpadmin in Action Alert

Tell the MoCo Council to First Fix Process for Reviewing and Approving Cell Poles — A MoCo Resident’s Plea

Rick Meyer, President of Montgomery County Coalition for the Control of Cell Towers, describes issues with the cell tower permitting process and mistakes made.

Watch Rick Meyer's Testimony on YouTube.

Montgomery Co. family got a 68' cell tower in their front yard because of a mistake. Nine years later it's still there despite her and her neighbors' attempts at seeking remedy and testifying before the Montgomery County Council.

Watch Vicki Huo's 2021 Testimony on YouTube.
Watch Vicki Huo's 2019 Testimony on YouTube.
Watch Vicki Huo's 2018 Testimony on YouTube.

Vicki Huo testimony image
"I believe the Council should make no changes to residential cell tower zoning rules until you fully fix the process for reviewing and approving cell poles."

Posted by twtpadmin in Action Alert

OLD Information**ZTA 19-07 is now in “Suspended Animation” while County pursues two suits against FCC

An Update from Rick Meyer for Montgomery County Coalition for the Control of Cell Towers

Hoping this email finds you safe.

To borrow a line from John Oliver “We are still doing this!”

And, we just posted a long overdue update on the status of ZTA 19-07 and County’s pending litigation against the FCC on the home page.

We urge you to click on the link above and read the entire update – as lots has been happening, but summarized very quickly:
  • ZTA 19-07 was “suspended” by PHED Chair Hans Riemer on February 1, 2020 when he  summarily pulled  a Committee vote on the bill.
  • Neither Councilmembers Andrew Friedson, nor Will Jawando would agree to vote the bill out of PHED Committee, while Montgomery County is engaged in two  lawsuits against the FCC.
      • We are greatly appreciative of Mr. Friedson’s and Mr. Jawando’s steadfast support for residents and their amply justified hesitancy regarding this bad bill.
      •  Both suits have been consolidated in the 9th Circuit.
  • However,  ZTA 19-07 is NOT dead!!
    • Mr. Riemer is widely expected to reintroduce his bill (as co-sponsored by Councilmembers Gabe Albornoz and Craig Rice) as early as June 2020.
  • Oral arguments for the two lawsuits were held in 9th Circuit on February 10, 2020. The two suits include:
    •  challenge to the FCC’s recent “3rd Order” that expedited 5G roll out while reducing local government control over public rights-of-way; and,
    •  a second, separate suit seeking to compel FCC to conclude a long running “Notice of Inquiry” and promulgate updated RF emissions standards.
  • In the interim, the FCC peremptorily issued Order 19-226 that abruptly ended the very Notice of Inquiry that Montgomery County was seeking to compel – WITHOUT updating RF standards.
    • In effect, the FCC used procedural “slight of hand” to cut the legs out from under County’s lawsuit.
  • On January 28, 2020 the Council met in Executive Session with legal counsel for the RF Emissions suit. But that meeting was NOT open to the public and we have NOT been briefed on the conclusions of the discussions…
    • Unfortunately, the County Council subsequently (and inexplicably)  failed to appeal Order 19-226.
    • Perhaps slamming door on back-up strategy to keep the County’s RF litigation alive – if the 9th Circuit renders adverse opinion or dismisses their suit for lack of standing.
    • (The good news is that independently the Environmental Health Trust appealed Order 19-226!  But, the EHT case surely would have been strengthened, if the County had – at the very least – filed an amicus curiae brief. It did NOT.)
  • Decisions on the pending litigation are expected from 9th Circuit within next several months.

Please be sure to email both  Mr. Friedson and Mr. Jawando – and thank them for prioritizing the interests of residents and neighborhoods above the arm-twisting by lobbyists from Big Wireless.
MC4T will continue to closely monitor these developments. Stay tuned for further updates!

(Please be sure to forward this post to your friends and neighbors and encourage them to sign up for future bulletins from MC4T. Thank you so much for your continued support.)

Best regards,

Rick Meyer
for

Montgomery County Coalition for the Control of Cell Towers
MC4T.ORG

Posted by twtpadmin in Action Alert

Sample Letter for Opposing 3rd Cell Tower Near Blair High School – There are Other Possible Sites for this Public Safety Radio Equipment

Sample Letter You Can Personalize

Send Comments to Planning Board by Noon Wednesday March 4

Send to: OCEMail@montgomerycountymd.gov, Councilmember.Katz@montgomerycountymd.gov, County.Council@montgomerycountymd.gov, MCPChair@mncppc-mc.org. Gwen.Wright@montgomeryplanning.org, Joshua.Penn@montgomeryplanning.org

Re: Mandatory Referral 2020013 PSSM at FS 16

Dear County Executive Elrich, Members of the County Council and Planning Board Commissioners:

I’m writing to request that the application for the 199’ Macro Tower adjacent to Blair High School be withdrawn.  This would be a second tower within 50 feet of the Blair campus and less than 300 feet from homes and a child care. This new tower would be on the same property as an existing tower that will remain and would be a third tower that is within 200 feet of the campus. The existing two towers that will remain have a combined 70 antennas within 200 feet of the campus. More antennas will likely be added by right to those two towers in the coming years.

The proposed third tower with at a height of 199’ can have dozens of commercial wireless antennas and other equipment added after the County constructs the tower.  The construction of the tower by the County provides a loophole and allows the wireless companies to avoid the special exception/conditional use public hearing process with an objective hearing examiner, a review process that is required for new macro telecommunications towers in Montgomery County. Even though the tower would not meet the required setback and other standards, the antennas could be added by right without notice or public hearing through the permit process once the County’s tower is constructed.

There is no other school in Montgomery County with two cell towers in such close proximity.  A third and oversized tower at this location would be an excessive over-concentration of wireless facilities in a small area where thousands of young people, including child care and elementary school students are gathered.  This is unjustified and not equitable.

As you may know, wireless carriers previously applied to locate a 170’ tower at the same location but since the tower was not in compliance with the Zoning Ordinance and was too large for the site, the application was withdrawn. If this larger proposed tower at the same location was submitted as a special exception/conditional use it would likely be denied because it doesn’t comply with the Code.

There are numerous alternatives for the County to co-locate the seven public safety radio antennas on support structures and towers that already exist in both the immediate and adjacent areas.  I urge you to co-locate the County’s antennas on one of those structures.

Thank you for your attention to this very important matter that would affect our students for many years to come.  I hope you will withdraw the application and continue to support the primary mission of MCPS to provide a safe and supportive environment for the academic success of every student.

Sincerely,

 


See also: Facts about the Blair High School Cell Tower

Posted by twtpadmin in Action Alert

FIRST EVER 5G GLOBAL PROTEST DAY JANUARY 25TH, 2020

Humanity, the Natural World, Earth, and Space are under assault – indeed the entire planet is being microwaved. We were never consulted. We do not consent!!

ANNOUNCEMENT (PLEASE SHARE WIDELY!): 

Saturday, the 25th of January 2020 will be the first ever 5G Global Protest Day!Please join in as communities, towns, cities and countries around the world rise up against the threat of 5G wireless technology.

Two Weeks of Action to raise awareness about the harms of 5G from January 12th-24th will culminate in a Global 5G Protest Dayon January 25th.

Featured in the Two Weeks of Action will be the delivery of the International Appeal to Stop 5G on Earth and In Space to governments and international organizations around the world.

To learn more about how you can get involved please visit the new website https://stop5ginternational.org

If you are planning an event, please email us the country, city, location, time and a contact email, so we can post it on the website. If details are not yet in place, please just send country, city and contact email. Send to team@stop5ginternational.org.

It is urgent that we campaign now, en-masse, to Stop 5G on Earth and in Space and to ensure that life not only survives, but continues to thrive for generations to come.

Both individually and collectively, we have a responsibility toward our future, our children and all life.

Please share this rallying cry widely so on January 25th, around the planet, we come together in thousands or even millions to say NO to 5G on Earth and in Space!

In Solidarity,
The Stop 5G International/5G Global Protest Team
www.stop5ginternational.org

Please also visit our
Facebook Group

P.S. Regarding members of the “Team” please see the statement on the About section of the website for further clarification about initiators of the January Events and the website. Thank you.
https://stop5ginternational.org


STOP5G International Declaration

We envision and seek to ensure a world where 5G, 6G or any other “G” is replaced by safe technology that has undergone scrutiny to ensure the health and well-being of all life on the planet before being unleashed.We envision and seek to ensure a world where the health and well-being of all life takes precedence over corporate self-gain.

We envision and seek to ensure a world where people are connected face-to-face and heart-to-heart, and not consumed by ubiquitous virtual connectivity.

We envision and seek to ensure a

world where the increasingly frenetic pace of hyper-connectivity is slowed down so we can once again connect to our own humanity.We envision and seek to ensure a world where the pursuit of “faster”, “bigger” and “more” is replaced with contentment from “just enough”.

In short … a future that respects and protects all life on this planet.

We call on all world governments to heed the growing voice of scientists, medical doctors, engineers, and others who warn we must halt the “race to 5G” and consciously chart a wiser and safer course into the future. 
Posted by twtpadmin in Action Alert

TUESDAY Nov. 19, 2019 HEARING: ACT NOW to Stop County Approval of Cell Towers in Front Yards

UPDATE: The hearing was held Nov. 19, 2019 (related post located here), but there is still time to voice your concerns. Find council contact information at the end of this post.

Tuesday Night, Nov. 19:

Let’s Pack the County Council Hearing to Oppose Cell Towers as Close as 30 Feet from Our Homes!

In order to speak, you need to sign up to make a 3-minute comment Nov. 19, Tuesday, at the County Council hearing on County Councilmember Hans Riemer’s proposal — Zoning Text Amendment 19-07. Also, contact County Councilmembers directly  — see links to all below — to share your concerns.
ZTA 19-07 would make it easier to line residential streets with cell towers on street poles in our public rights-of-way — as close as 30 feet from our front doors.
What’s the problem?
  • Serious Potential Public-Health Risk: From Scientific American last month–We Have No Reason to Believe 5G Is Safe (Joel M. Moscowitz, UC Berkeley). It links to a recent call from hundreds of scientists and doctors for a moratorium on 5G deployment.
  • Corporate Welfare, Compliments of Taxpayers:  Corporations prefer to place cell towers in public rights-of-way since they can use our land at cost rather than negotiate a rate with a private property owner: It’s a much more profitable business model.
  • Other 5G issues:  Sponsors of ZTA 19-07 repeat industry’s hype about the positive potential of 5G. What about its negative potential? In addition to health concerns, predictions include: A new world of 24/7 corporate and government surveillance and control, further diversion from face-to-face relationships with people and nature, harm to trees, and a big increase in energy use to power the new connected devices. Remember the wonders of lead, asbestos, tobacco, CFCs, and fossil fuels? Let’s critically evaluate this new technology before we dive in — not be sorry later.

Tell our County Council ::: Our Health & Safety Is Not Negotiable!

Speak Up — or just show up, with or without a sign — at Tuesday’s County Hearing: Anyone can sign up — you’ll be placed on a wait list, but we hear folks on the wait list generally get to speak. And just your attendance — with a handmade sign, if you like — will be powerful!
Call and Email the Council — Contact Info Below. Connect with them on Twitter and Facebook. Set up meetings in person with staff  to express your opinion. They need to hear from you today:
 
Hans Riemer (At Large) is the lead sponsor of this proposed Ordinance. The 2 co-sponsors are Craig Rice (District 2), and Gabe Albornoz (At Large).
We need 5 of the 9-member Council to oppose it to stop it. Help us reach the whole Council, but especially Evan Glass and Will Jawando, who are also At Large reps for the entire County, as well as Tom Hucker, our own District 5 rep.  And urge County Executive Marc Elrich to strongly oppose it too.
Send email to all Councilmembers — County.Council@MontgomeryCountyMD.gov
— or contact one by one:
——————-
Contact County Executive Marc Elrich: 240-777-0311
Community Vision for Takoma
Posted by twtpadmin in Action Alert, Legislation

URGENT: We need your help, again – to STOP ZTA 19-07

Montgomery County Coalition to Control Cell Towers-MC4T

Dear neighbors,

Councilmember Reimer is back with yet another industry tilted Zoning Text Amendment (ZTA) 19-07 – written by and for the exclusive benefit of Big Wireless.

ZTA 19-07 does NOT protect residents.

It is another retread in a series of bad bills that reduces cell pole setbacks in residential zones and further erodes the already insufficient procedural protections for residents.   Bottom line:  ZTA 19-07 will make it faster, easier and cheaper for Big Wireless to install large cellpoles in very close proximity to homes.

ZTA 19-07 must be stopped! 

How can you help defeat ZTA 19-07?

  • Attend the only scheduled public hearing  and voice your strong opposition to ZTA 19-07 at 7:30PM on Tuesday November 19, 2019 at Council Office Building in Rockville. (You may still be able to sign up to testify here.) Regardless, put this on your calendar and please plan to attend!
  • Email and call members of the Council to express your oppostion to 19-07. (It is very important that the four brand new members of the Council (Albornoz, Friedson, Glass and Jawando) hear from residents about our strong disapproval of ZTA 19-07.  Those four new Councilmembers were not  part of prior wireless ZTA reviews

Residents have been pleading with the Montgomery County Council for 3 years to work with us and to work with the County Executive to write and pass comprehensive legislation that truly protects neighborhoods from obtrusive and ugly wireless contraptions in close proximity to homes,  and to fix the administrative deficiencies of all current wireless telecommunications and related ordinances to provide equity, transparency and fairness for residents.

Please follow @MC4TORG on twitter and like/repost our most recent tweet regarding ZTA 19-07.

And, thanks so much for your continued support!

Rick Meyer

on behalf of

http://www.mc4t.org/

 

Posted by twtpadmin in Action Alert, Legislation

The Montgomery County Council will be holding a Public Hearing on Bill ZTA 19-07 on Tuesday, November 19th at 7:30pm at the Montgomery County Council Building

The Montgomery County Council will be holding a Public Hearing on Bill ZTA 19-07 on Tuesday, November 19th at 7:30pm at the Montgomery County Council Building.  If this Bill passes, it will allow the deployment of Small Cell Millimeter Microwave radiating antennas in "some" residential areas every 2-3 or so homes only 30 feet away from our houses.

Rick Meyer, President of the Montgomery County Coalition for the Control of Cell Towers provides this commentary:

  • Residents defeated three previous attempts since 2016 to pass zoning legislation on behalf of Big Wireless to make it faster, simpler and cheaper to install wireless transmitters in close proximity to residences. (ZTA 19-07 is the fourth attempt since 2016 and the third sponsored by Councilmember Reimer.)
  • Unfortunately, residents were not able to defeat ZTA 18-02 last year which removed protections for apartment and condo dwellers in Commercial zones)
  • Reimer’s 19-07 is no better than what had been defeated previously.
  • And, 19-07 does nothing to fix procedural inequities and lack of opportunities for input by residents. Which is why the residents of Montgomery County have been pleading with the Council for 3 years for comprehensive Legislation that truly protects their neighborhoods from intrusive and ugly wireless contraptions.
  • ZTA 19-07 does NOT protect residents. It is another retread in a series of bad bills written by and for the exclusive benefit of Big wireless.

Here is what you can do now.

Gabe Albornoz 240-777-7959
Councilmember.Albornoz@montgomerycountymd.gov
View Staff List for Gabe Albornoz

Andrew Friedson 240-777-7828
Councilmember.Friedson@montgomerycountymd.gov
View Staff List for Andrew Friedson

Evan Glass 240-777-7966
Councilmember.Glass@montgomerycountymd.gov
View Staff List for Evan Glass

Tom Hucker 240-777-7960
Councilmember.Hucker@montgomerycountymd.gov
View Staff List for Tom Hucker

Will Jawando 240-777-7811
Councilmember.Jawando@montgomerycountymd.gov
View Staff List for Will Jawando

Sidney Katz 240-777-7906
Councilmember.Katz@montgomerycountymd.gov
View Staff List for Sidney Katz

Nancy Navarro 240-777-7968
Councilmember.Navarro@montgomerycountymd.gov
View Staff List for Nancy Navarro

Craig Rice 240-777-7955
Councilmember.Rice@montgomerycountymd.gov
View Staff List for Craig Rice

Hans Riemer 240-777-7964
Councilmember.Riemer@montgomerycountymd.gov
View Staff List for Hans Riemer

Related Links:

 

Posted by twtpadmin in Action Alert, Legislation